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Brown v. Ds Services of America, Inc.

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

March 30, 2017

Dorothy L. Brown, Plaintiff,
DS Services of America, Inc., d/b/a Hinckley Springs, Defendant.



         Dorothy L. Brown filed this action against DS Services of America, Inc., d/b/a Hinckley Springs, alleging violations of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq., the Fair Labor Standards Act, as amended, 29 U.S.C. §§ 207, 216, the Illinois Minimum Wage Law, 820 ILCS 105/1, et seq., the Illinois Wage Payment and Collection Act, 820 ILCS 115/1, et seq., and the Illinois Personnel Record Review Act, 820 ILCS 40/0.01, et seq. DS Services moves for summary judgment. For the following reasons, the Court grants DS Services's Motion for Summary Judgment [37] in part and denies it in part.


         The following facts are undisputed based upon the Court's review of the Rule 56 statements unless otherwise noted. DS Services of America, Inc. (“DS Services” or “the company”), a national supplier of beverage delivery services, maintains a branch in Chicago. (Dkt. 47, ¶ 4.) On March 1, 1980, the Chicago branch hired Dorothy Brown (“Brown”) to work in the company's computer room. (Id., ¶¶ 3, 18; Dkt. 47-1, at 1.) Brown worked at the Chicago branch in various roles over her thirty-four years with the company, eventually transitioning into a Branch Coordinator position, the role she fulfilled when DS Services laid her off in January 2014. (Dkt. 47, ¶ 3.) Brown was 67 years old at the time. (Id., ¶ 75.)

         I. Brown's Employment with DS Services

         A. The DS Services Employee Handbook

         During her employment with DS Services, Brown received and read the company's Employee Handbook. (Id., ¶ 9; Dkt. 47-2, at 3, 17:3-16.) The Handbook contains the company's policies on age discrimination, at-will employment, layoffs, and overtime. (Dkt. 47, ¶ 9; Dkt. 47-2, at 46, 53, 58, 63). Specifically, during the time period relevant to this case, the Handbook states that “[n]o supervisor, manager, or representative of DS Waters other than the Chief Executive Officer has the authority to enter into any agreement with an Associate…or to make any promises that are contrary to at-will employment.” (Dkt. 47, ¶¶ 9, 11; Dkt. 47, at 46, § 2.2.) Further, the Handbook provides that “[n]o supervisor, manager or other representative… has the authority to make any verbal promises, commitments, or statements of any kind contrary to DS Waters' written policies, procedures, or benefits.” (Dkt. 47, ¶ 11; Dkt. 47, at 46, § 2.2.)

         According to its Handbook, DS Services considers regular, full-time, nonexempt associates for layoffs on the basis of their skill, expertise, past performance, and ability. (Dkt. 47, ¶ 77; Dkt. 47-2, at 58, § 2.12.) When two or more associates are deemed equal in these regards, the company determines layoffs based on seniority. (Dkt. 47, ¶ 77; Dkt. 47-2, at 58, § 2.12.)

         The Handbook also requires nonexempt employees to “request prior approval to work overtime and record all hours worked using the Company Time and Attendance system.” (Dkt. 47, ¶ 12; Dkt. 47-2, at 63, § 3.5.) DS Services informs nonexempt employees that they must take at least a 30-minute lunch break for each five-hour work period. (Dkt. 47, ¶ 13; 47-2, at 64, § 3.6) They cannot work during lunch and need to punch out. (Id.) Management and nonexempt associates need to verify employees' hours and ensure the accuracy of meal periods reported. (Id.) Brown understood these as the official overtime policies. (Dkt. 47, ¶¶ 12-13; Dkt. 47-1, at 6-7, ¶¶ 25-28.) The Handbook also disclaims that it “does not create a contract” between DS Service and the employee “for employment, compensation or benefits, ” and that DS Services “may revise add to or eliminate at any time any of the policies, procedures, practices and benefits in the Handbook.” (Dkt. 47, ¶ 10; Dkt. 47-2, at 101.)

         B. Brown's Roles at DS Services

         Brown worked in the company's computer room for twenty-five years. (Dkt. 47, ¶ 18; Dkt. 47-1, ¶ 2.) In 2005, she transitioned into a Sales Administrator role. (Dkt. 47, ¶ 18.) At that time, she also shifted from exempt to nonexempt status, making Brown an hourly employee who needed to track her time. (Id., ¶ 19.) To record her hours, Brown used either a computer-based or physical clock to punch in and out. (Id.)

         In 2009, Brown began to report to Sales Manager Scott Hurley (“Hurley”). (Id., ¶ 20.) While reporting to Hurley, Brown administered payroll, among other tasks. (Id.) Between June and October of 2010, Brown and Hurley arranged for Hurley to compensate Brown with time off if she worked overtime off-the-clock, even though Brown knew that they “weren't supposed to.” (Id., ¶¶ 23, 29; Dkt. 47-2, at 22, 100:4-6.) Brown kept overtime logs during this time. (Dkt. 47, ¶ 24.) Those logs show that she worked 25.5 overtime hours for Hurley. (Id., ¶ 24; 47-1, at 19.) Around November 2010, [1] Brown became a Branch Coordinator for the Home & Office Delivery (“HOD”) Department. (Dkt. 47, ¶ 25.) As a Branch Coordinator, Brown ordered supplies, prepared reports, entered data, and dealt with some customers. (Id., ¶ 26.) Route Operations Manager Dale Sjoerdsma (“Sjoerdsma”) supervised Brown in this role. (Id., ¶ 28.) Brown did not have a similar, informal overtime arrangement with Sjoerdsma and did not inform him about her arrangement with Hurley. (Id., ¶¶ 23, 29; Dkt. 47-2, at 22, 101:17-19.)

         At some point in 2011 or 2012, Route Operations Manager Jim Schramm, who is over 50 years old, became Brown's supervisor in her role as Branch Coordinator. (Dkt. 47, ¶¶ 28, 31.) They shared an office with other supervisors, including Jeff MacLagan. (Id., ¶ 35.) Schramm and MacLagan sometimes teased Brown about her age in the year or two leading up to her layoff. (Id., ¶ 35.) Schramm once commented something along the lines that the restaurant Dell Rhea's Chicken Basket had “been around forever, ” “probably even when Dottie was…”. (Id., ¶ 35; Dkt. 47-2, at 4-5, 21:21-25, 22:1-1.) Indeed, Dell Rhea's had opened in 1947, the same year that Brown was born. (Dkt. 47, ¶ 35.) Brown also says that “if someone is just goofing around, [she] just take[s] it that way.” (Id., ¶ 35; Dkt. 47-2, at 4, 20:11-13.)

         C. Veronica Soto's Roles at DS Services

         At the time of Brown's layoff, Veronica Soto (“Soto”) worked as the second and only other HOD Branch Coordinator at DS Services in Chicago. (Dkt. 47, ¶ 56.) Originally, DS Services hired Soto into a part-time role in 2007 as a Retail Branch Coordinator for the Direct Store Delivery (“DSD”) Department, also referred to as a “DSD Clerk.” (Id., ¶ 57.) As her primary duty as a DSD Clerk, Soto made about 60-100 calls per day and spent 90-95% of her time talking to DSD customers on the phone about their orders. (Id., ¶¶ 59-64.) The job posting for DSD clerk did not require Spanish language skills but DSD Manager Rick Wagner says that this was the most important factor when hiring Soto and her predecessor, both of whom spoke Spanish. (Id., ¶ 61.) At that time, about half of the DSD customers spoke Spanish, while an estimated 15-20% spoke only Spanish and conducted all of their business with DS Services in Spanish.[2] (Id., ¶ 62.) The Chicago branch thus had at least some need for a DSD clerk with Spanish skills. (Id., ¶ 63.)

         In late 2010 or early 2011, the DSD Department merged with the HOD Department, and Soto and Brown became HOD's two Branch Coordinators. (Id., ¶ 65.) For a time, they shared Sjoerdsma as a supervisor. (Id.) When she moved into the role, Soto continued to handle at least 50 calls per day from DSD customers, about half of them in Spanish. (Id., ¶¶ 66-67.) The parties dispute whether Soto's continued phone calls to customers should be considered the responsibility of a Branch Coordinator. (Id.) It is undisputed, however, that Brown does not speak Spanish and never made DSD customer calls as Branch Coordinator. (Id., ¶ 68.) The parties also dispute the extent to which bilingual ability was a job requirement, as Brown asserts that the first time any language requirement appeared was after Brown's termination and in response to her EEOC claim. (Dkt. 58, ¶¶ 22, 25.) There is also a significant dispute regarding the importance of the DSD business and the degree to which DSD customers waned in the years leading up to Brown's termination, obviating any perceived need for a Spanish speaker in that role. (See Dkt. 58, ¶¶ 23-24.) The parties are in agreement, however, that following Brown's termination, Soto eventually stopped making the calls. (Id., ¶¶ 67-68.) Beyond making calls in Spanish, Soto was qualified for the job and performed other Branch Coordinator responsibilities, at least in part because Brown had trained Soto. (Dkt. 58, at 26; Dkt. 47-2, at 31, 137:4-6; Dkt. 47-10, at 23, 122:11-24.)

         D. Brown's Schedule and Hours at DS Services

         Typically, as a nonexempt employee with DS Services, Brown either worked between 8:30 am and 5:00 pm with a half hour lunch break, or between 8:30 am and 5:30 pm with an hour lunch break. (Dkt. 47, ¶¶ 14, 36.) The Chicago branch did not prepare or post a schedule for employee hours. (Id., ¶ 15.) Hours varied by employee. (Id., ¶ 15.) As such, Brown could manage her schedule, and accordingly arrive early or stay late. (Id., ¶ 36.) Brown clocked out most of the time during lunch because she “had to take a lunch, ” but says she often continued to work. (Id., ¶ 41.) She also sometimes forgot to clock out for lunch, ate in the front office lunchroom, or left the office. (Id., ¶¶ 41-42.) Brown sometimes stayed late at the office to finish up tasks after clocking out, but she is “not sure” how often this happened and thinks this occurred “maybe” three times per week. (Id., ¶ 44.) When Schramm finished his delivery route between 4:00 pm and 7:00 pm, he sometimes saw Brown in the office after 5:00 pm when he returned. (Id., ¶ 47.)

         Brown received reminders from DS Services' management to maintain a forty-hour work week. For example, Sjoerdsma, Brown's initial supervisor in her Branch Coordinator role, reminded her to complete her work within forty hours per week. (Id., ¶ 54.) Human Resources Manager Meg Karolczak also told Brown to maintain an eight-hour workday. (Id., ¶¶ 5, 54.) In December 2013, Chicago Branch Manager Jeff Ranos emailed Brown the same. (Id., ¶¶ 52-54.) Still, sometimes the Regional Office Managers asked Brown to stay, but never told her that she needed to clock out first. (Id., ¶¶ 45, 51.) Brown also had received approval as a Branch Coordinator to work overtime for a certain project, and she officially recorded and received pay for at least some overtime. (Id., ¶ 39.) Any Regional Operations Manager could approve an overtime request, but Brown did not ask these supervisors to approve additional overtime pay. (Id., ¶¶ 40, 49, 51.) Brown felt she had to do whatever she needed to do to get the job done, even if it took working over forty hours a week without overtime, because she “felt better making sure [she had] that extra time to get things done…” (Id., ¶¶ 45, 52-53; Dkt. 47-2, at 29, 126:1-5.) Brown sometimes noticed alterations to her time entries, but her supervisors and branch manager only made changes to round minutes or to correct instances where she forgot to clock in or out. (Id., ¶ 55.) Nonetheless, even if a supervisor did not review Brown's hours, payroll processed payments automatically. (Id., ¶ 37.)

         Except for the hours she recorded for Hurley between June and October 2010, Brown did not keep logs of the overtime hours she worked. (Id., ¶ 24; Dkt. 47-1, at 19; Dkt. 47-2, at 22, 100:7:10.) Brown ultimately created spreadsheets estimating the overtime pay that she says DS Services owes her. (Dkt. 53-1, at 2-12.) She bases these estimates on her personal knowledge and belief that she worked overtime 23.5 hours per month from July 2005 to October 2013. (Id.)

         II. Restructuring at DS Services

         A. Deciding to Layoff a ...

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