United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Thomas M. Durkin United States District Judge.
Hoke alleges that Daniel Abrams and Ashwini Sharan failed to
pay her certain wages in violation of the Illinois Wage
Payment and Collection Act (“IWPCA”) for her work
at their company, Integrated Care Pharmacy LLC
(“ICP”). R. 1. Abrams and Sharan filed a third
party complaint against Cameron Horan, former CEO of ICP, for
contribution to any liability they have under the IWPCA. R.
12. They also raised affirmative defenses to Hoke's
claims, based on “breach of contract, breach of duty of
loyalty, and breach of fiduciary duty” (second
affirmative defense); and “fraud, estoppel, waiver,
[and] unclean hands” (third affirmative defense).
Id. at 8. Abrams and Sharan have moved for summary
judgment, R. 67; as has Horan, R. 72. Hoke has also moved for
summary judgment on Abrams and Sharan's second and third
affirmative defenses. R. 69. For the following reasons,
Abrams and Sharan's motion is denied, and Horan's and
Hoke's motions are granted.
judgment is appropriate “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); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The Court
considers the entire evidentiary record and must view all of
the evidence and draw all reasonable inferences from that
evidence in the light most favorable to the nonmovant.
Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013).
To defeat summary judgment, a nonmovant must produce more
than “a mere scintilla of evidence” and come
forward with “specific facts showing that there is a
genuine issue for trial.” Harris N.A. v.
Hershey, 711 F.3d 794, 798 (7th Cir. 2013). Ultimately,
summary judgment is warranted only if a reasonable jury could
not return a verdict for the nonmovant. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Abrams, Sharan, and Horan (among other individuals) started
ICP to produce pharmaceutical products. See R. 19-3.
Hoke and Horan have submitted declarations stating that they
agreed that ICP would pay Hoke a base salary of $206, 000 and
an earned bonus of $56, 000. See R. 82-2 ¶ 4;
R. 82-3 ¶ 5. Hoke was issued a W-2 form by ICP. R. 93 at
9 (¶ 2).
January 2013, mold was discovered in the ceiling of the
facility ICP had rented to use for production. Hoke did not
disclose the mold discovery during an inspection by the Board
of Pharmacy later that month. Hoke “hired professional
service providers who removed and replaced ceiling
insulation, removed and replaced the ceiling tiles, and
professionally cleaned the ducts.” R. 93 at 13 (¶
began to suffer financial difficulties. As of July 23, 2013,
ICP could not make payroll. R. 82 at 7 (¶ 24); R. 86 at
4 (¶ 7). Both Hoke and Horan stated in their
declarations that in light of the fact that ICP had no money
to pay them, they agreed to defer their compensation but
continue to work for ICP. R. 82-2 ¶ 9; R. 82-3 ¶ 7.
Eventually, however, Horan left ICP on August 23, 2013, and
Hoke left on September 10, 2013. R. 82-2 ¶ 9; R. 82-3
October 1, 2013, ICP was able to pay bills totaling over $10,
000. R. 93 at 11 (¶ 12). ICP was also able to pay
employees, id. at 12 (¶ 13); to hire new
employees, id. at 12 (¶ 16); and to continue
operations for over a year after Hoke quit, id. at
12 (¶ 14). Mold was discovered again in ICP's
facility sometime in September or October 2014, more than a
year after Hoke had resigned. R. 93 at 15 (¶ 32).
seeks payment of her deferred compensation and bonus from
Abrams and Sharan as her “employers” under the
IWPCA. Abrams and Sharan have moved for summary judgment
arguing (1) Hoke did not have an enforceable compensation
agreement with ICP; (2) to the extent a compensation
agreement existed, they did not have sufficient knowledge of
it to confer liability under the IWPCA; (3) ICP could not pay
Hoke because it did not have the money; (4) deferred
compensation is not recoverable under the IWPCA; and (5) any
compensation Hoke was owed was rightfully withheld because
Hoke breached her duties to ICP by not properly handling the
mold situation. Abrams and Sharan also seek contribution from
Horan for any liability they have for failure to pay Hoke.
Hoke's Claims Against Abrams and Sharan
IWPCA permits employees to sue for compensation they are owed
by an employer “pursuant to an employment contract or
agreement.” 820 ILCS 115/2. A “contract is not
necessary under the [IWPCA].” Landers-Scelfo v.
Corp. Office Sys., Inc., 827 N.E.2d 1051, 1068
(Ill.App.Ct. 2d Dist. 2005). Rather, “a worker seeking
to recover under [the IWPCA] does not need to plead all
contract elements if she can plead facts showing mutual
assent to terms that support the recovery.”
Id.; see also Hess v. Kanoski & Assocs.,
668 F.3d 446, 452 (7th Cir. 2012) (“Illinois courts
have explained that an agreement under the IWPCA is broader
than a contract.”). “Mutual assent” can be
manifested “by conduct alone”-i.e., an employer
“could have manifested its assent to [an agreement with
a plaintiff] ...