United States District Court, N.D. Illinois, Eastern Division
PAUL BLAHNIK and ADDISON POPPAS, individually and for all others similarly situated, Plaintiffs,
BOX OFFICE TICKET SALES, LLC, TICKETS IN TIME, LLC, JOHN URICH, and HOWARD SCHWARTZ, Defendants.
MEMORANDUM OPINION AND ORDER
Z. Lee, Judge
Paul Blahnik (“Blahnik”) and Addison Poppas
(“Poppas”) (together, “Plaintiffs”)
brought a class action suit against Defendants Box Office
Ticket Sales, LLC, Tickets in Time, LLC, John Urich, and
Howard Schwartz (“Defendants”). They claim that
Defendants failed to pay them overtime as required by the
Fair Labor Standards Act (FLSA), 29 U.S.C. § 207 et
seq. One individual-Julius Mosansky
(“Mosansky”)-opted in to Plaintiffs' class.
Defendants have now moved for partial summary judgment,
arguing they should be exempt from the FLSA's overtime
pay requirements except in relation to Poppas's
employment from 2014 through 2015. For the reasons that
follow, Defendants' motion  is granted.
Office Ticket Sales (“BOTS”) is the trade name
for an online ticket broker that at all relevant times sold
event tickets to consumers. Defs.' LR 56.1(a)(3) Stmt.
¶ 4, ECF No. 41. Among BOTS's offerings were tickets
to concerts, sporting events, and the theater. Id.;
Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 2, ECF No.
When customers called seeking tickets, BOTS's sales
representatives searched sites like Ticketmaster and StubHub
for tickets to the requested events, purchased them using a
company card, and then charged and sent them to the
customers. Pls.' LR 56.1(b)(3)(C) Stmt. ¶¶
22-24. Blahnik, Poppas, and Mosansky each worked for BOTS as
sales representatives. Id. ¶¶ 1-2. Blahnik
worked for BOTS from July 2013 through July 2015, Poppas from
February 2013 through June 2014 and again from November 2014
through April 2015, and Mosansky from October 2012 through
July 2013 and again from March 2014 through December 2014.
Defs.' LR 56.1(a)(3) Stmt. ¶¶ 6-8.
their employment at BOTS, Plaintiffs regularly worked 45
hours per week, Pls.' LR 56.1(b)(3)(C) Stmt. ¶¶
16-17, although they in some instances worked more,
Defs.' LR 56.1(a)(3) Stmt. ¶¶ 10-12. They were
compensated by a base salary of $35, 000, bonuses, and
commissions based on ticket sales they made. Id.
¶ 9; Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 13. They
were not paid overtime. Pls.' LR 56.1(b)(3)(C) Stmt.
hourly rate of compensation and percentage of compensation
based on commissions are relevant to their claims in this
case. During Blahnik's period of employment, his base
salary provided him a rate of compensation of at least $16.28
per hour. Defs.' LR 56.1(a)(3) Stmt. ¶ 14.
Additionally, commissions comprised at least 55.05% of his
total compensation during the years he worked for BOTS.
Id. ¶ 16. Poppas's base salary provided him
a rate of compensation of at least $12.57 per hour during his
employment in 2013. Id. ¶ 15. During that year,
commissions comprised 50.89% of his total compensation.
Id. ¶ 17. Mosansky's base salary provided
him a rate of compensation of more than $14.00 per hour.
Id. ¶ 13. Commissions comprised at least 56.72%
of his total compensation during his years at BOTS.
Id. ¶ 18.
state that, while working at BOTS, Defendant John Uhrich-
BOTS's CEO-“created a companywide policy of
refusing to sell tickets to African American callers.”
Pls.' LR 56.1(b)(3)(C) Stmt. ¶¶ 16,
Uhrich initially instructed Plaintiffs to “hang up the
phone whenever a person sounded African American or had an
African-American name, especially if that person requested
tickets to an event with a predominantly African-American
audience (e.g., rap concerts and NBA games).”
Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 27. Later, “due
to African-Americans calling back after being hung up on,
” Uhrich instructed Plaintiffs to “quote
African-American callers ticket prices so highly-inflated
that no reasonable person would purchase a ticket.”
Id. ¶ 28.
court shall grant summary judgment if 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). To survive summary judgment, the
nonmoving party must “do more than simply show that
there is some metaphysical doubt as to the material facts,
” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986), and instead must
“establish some genuine issue for trial such that a
reasonable jury could return a verdict in her favor.”
Gordon v. FedEx Freight, Inc., 674 F.3d 769, 772-73
(7th Cir. 2012). In reviewing a motion for summary judgment,
the Court gives the nonmoving party “the benefit of
conflicts in the evidence and reasonable inferences that
could be drawn from it.” Grochocinski v. Mayer
Brown Rowe & Maw, LLP, 719 F.3d 785, 794 (7th Cir.
2013). The Court must not make credibility determinations or
weigh conflicting evidence. McCann v. Iroquois Mem'l
Hosp., 622 F.3d 745, 752 (7th Cir. 2010).
have moved for partial summary judgment as to Plaintiffs'
FLSA overtime claims based on the “Commission
Salespersons” exemption found in 29 U.S.C. §
207(i). Defs.' Mem. Supp. Summ. J. 2, ECF No. 42. Under
this provision, employers are exempt from the FLSA's
overtime pay requirements as to certain employees where three
conditions are met: (1) the employer must operate (and the
employee must work at) a “retail or service
establishment”; (2) the regular rate of pay for such an
employee must exceed one and one-half times the applicable
minimum hourly rate; and (3) more than half of the
employee's compensation for a representative period of at
least one month must come from commissions on good or
services. 29 U.S.C § 207(i); see Alvarado v. Corp.
Cleaning Servs., Inc., 782 F.3d 365, 366 (7th Cir.
moving for summary judgment, it is Defendants' burden to
establish that the § 207(i) exemption applies.
Laouini v. CLM Freight Lines, Inc., 586 F.3d 473,
475 (7th Cir. 2009) (explaining that a defendant moving for
summary judgment on the basis of an affirmative defense
carries the burden of establishing the defense). Here, there
are no genuine disputes of material fact, and in any case,
whether the exemption applies is a question of law for the
Court to decide. See Roe-Midgett v. CC Servs., Inc.,
512 F.3d 865, 869 (7th Cir. 2008) (citing Icicle
Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986))
(“Determining the duties encompassed by an
employee's position is a question of fact; determining
the appropriate FLSA classification is a question of
law.”); see also Bitner v. Wyndham Vacation
Resorts, Inc., No. 13-CV-451-WMC, 2016 WL 7480428, at
*17 (W.D. Wis. Dec. 29, 2016) (stating that whether a
defendant is a retail or service establishment under §
207(i) is a question of law). Moreover, the Seventh Circuit
has stated that the § 207(i) exemption is to be
construed against an employer trying to assert it, but only
as a tie-breaker in a close case. Mechmet v. Four Seasons
Hotels, Ltd., 825 F.2d 1173, 1177-78 (7th Cir. 1987).
start by arguing that the second and third conditions for the
§ 207(i) exemption are satisfied. According to their
calculations, Plaintiffs each received a regular rate of pay
that exceeded one and one-half times the applicable minimum
wage (which is $12.38 per hour) during the relevant time
periods, and Plaintiffs each received total earnings in the
relevant years more than half of which were made up of
commissions. Defs.' Mem. at 5-8; Defs.' LR 56.1 Stmt.
¶¶ 13-18. Plaintiffs do not contest these
calculations, Pls.' Resp. Defs.' LR 56.1(a)(3) Stmt.
¶¶ 13-18, ECF No. 47, nor do they dispute that
Defendants have satisfied the second and third requirements
of § 207(i).
Plaintiffs focus their arguments on the first requirement:
whether BOTS constitutes a “retail or service
establishment.” They argue it does not for three
reasons. First, Plaintiffs contend that they worked regular
hours, which precludes BOTS from being categorized as a
“retail or service establishment.” Pls.' Mem.
Opp. Summ. J. 7-10, ECF No. 49. Second, Plaintiffs direct the
Court to guidance from the Department of Labor
(“Department”) stating that a travel agency lacks
a “retail concept.” Id. at 10 (citing 29
C.F.R. § 779.317). Reasoning that BOTS's business is
“functionally no different from that of a travel agent,
” Plaintiffs argue that BOTS- like a travel agency-is
not a retail establishment. Id. at 11. Finally,
Plaintiffs argue that BOTS's purported policy of not
selling tickets to African-Americans demonstrates that ...