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Magpayo v. Advocate Health and Hospitals Corp.

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

February 20, 2018

CRIXENIA MAGPAYO, individually and on behalf of all others similarly situated, Plaintiff,



         Plaintiff Crixenia Magpayo sued Defendant Advocate Health and Hospitals Corporation under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq.; the Illinois Minimum Wage Law (IMWL), 820 ILCS 105/1, et seq.; and the Illinois Wage Payment and Collection Act (IWPCA), 820 ILCS 115/1, et seq. Plaintiff alleges that Defendant failed to pay her-and others similarly situated-certain overtime wages and wages earned for working through lunch breaks. Plaintiff moved to certify a class for her state-law claims and conditionally certify an FLSA collective action [68], and Defendant moved for summary judgment [74]. For the reasons explained below, this Court grants Plaintiff's motion and partially grants Defendant's motion.

         1. Background

         The following facts come from Defendant's Local Rule 56.1 statement of material facts [77] and Plaintiff's Local Rule 56.1 statement of additional facts [82].[1]

         Defendant operates Advocate Trinity Hospital (Trinity). [77] ¶ 2. Plaintiff worked as a nurse in the hospital's emergency room department (ED) from about April 2012 to January 2016. Id. ¶ 4. Before Plaintiff accepted her job at Trinity, an ED manager emailed her the “RN Tiered Registry Requirements” schedule. [82] ¶ 2. The schedule specified that Plaintiff would earn $36.75 per hour as a Tier II registry nurse, and also specified the number and type of shifts that Plaintiff would need to work. [77] ¶ 9. After Plaintiff accepted the job, a staffing consultant from Trinity sent her a letter in March 2012 stating: “This letter is to confirm our verbal offer and your acceptance of the RN Registry-Tier II position at an hourly salary of $36.75.” [82] ¶ 4. Plaintiff signed the letter and returned it to Defendant on her first day of work in April 2012. [83] ¶ 5.

         For most of her time in the ED, Plaintiff worked “registry, ” which meant that she had a flexible schedule. [77] ¶ 7. Given the flexible nature of Plaintiff's job, her hours per week varied from zero to more than 40. Id. ¶ 8. Between January 2013 and December 2015, Plaintiff worked over 40 hours in 22 workweeks and worked between 38.5 and 40 hours in 2 workweeks. [82] ¶ 39. While working in the ED, Plaintiff recorded her hours using AdvocateWorks (AW), Defendant's electronic timekeeping system. [77] ¶ 13.

         Defendant's Meal Period policy says that employees get an unpaid 30-minute meal period for each consecutive block of 7.5 hours worked. Id. ¶ 28. Accordingly, AW automatically deducts 30-minutes' pay from each shift for which an employee is eligible for a meal period. Id. ¶ 29. Defendant's Meal Period policy and Associate Handbook, both of which Plaintiff denies receiving, provide for employees to use a “no lunch” code in AW if they could not take an uninterrupted 30-minute meal break during a shift. Id. ¶¶ 31-34. Alternately, employees may notify managers about not getting a 30-minute meal break, or may fill out a timecard adjustment form, which a manager would sign and send to payroll. Id. ¶ 31-32, 37.

         Before taking a break, ED nurses must find someone to cover their patients. Id. ¶ 17. The parties agree that Plaintiff never used a “no lunch” code while working at Trinity, [82] ¶ 40, but she alleges that: (1) she never received an uninterrupted 30-minute meal break because ED nurses were stretched too thin to cover each other's patients; and (2) Defendant never told her that she could use the “no lunch” code or a timecard adjustment form. Id. ¶¶ 18-19, 31. Plaintiff also alleges that Trinity's ED managers knew that she and other nurses did not get meal breaks and that Defendant did not pay them for the missed breaks. Id. ¶ 27.

         Plaintiff testified that, on some occasions, she continued working on patient charts after clocking out of AW. [77] ¶ 46. Although Plaintiff acknowledged that “no one ever told her to punch out and continue working, ” id. ¶ 45, she contends that she interpreted pressure from management to multitask and clock out on time as an order to clock out at her shift's scheduled end time, but nevertheless to stay late and finish any remaining charting duties “off the clock.” [82] ¶ 12. Defendant's electronic charting system allows nurses to edit patient charts while logged out of AW. Id. ¶ 13. When Plaintiff stayed logged in to AW while working on charts beyond her scheduled shift end, Defendant paid her for that time. [77] ¶ 48.

         A. Class and Collective Action Allegations

         Plaintiff alleges that she and other current and former registered nurses from Trinity's ED are similarly situated because Defendant failed to pay them for some or all of their work as described above, affecting all proposed class members equally. [45] ¶ 19, 28-29. Specifically, Plaintiff alleges that all nurses worked “under common employment policies, ” subject to “the same compensation scheme” (an hourly rate of pay for all hours worked), and that Defendant automatically deducted 30-minutes' pay for a meal break from each nurse's daily wages, even though the nurses rarely or never got uninterrupted 30-minute meal breaks. Id. ¶ 20. Beyond the automatic deductions, Plaintiff alleges that Defendant knowingly required uncompensated work from its ED nurses, such as responding to pages immediately even if they were trying to take a meal break. Id. ¶ 21. Defendant allegedly knew that staffing levels for ED nurses were too low for nurses to take uninterrupted meal breaks. Id. ¶ 22. Plaintiff estimates that the proposed IMWL and IWPCA classes contain at least 40 people each. Id. ¶ 26.

         Attached to Plaintiff's class certification motion are declarations from 11 other ED nurses who tell essentially the same story: that Defendant automatically deducted pay for 30-minute meal breaks that the nurses hardly, if ever, got to take because going on break was “neither realistic nor safe” for patients. See [69-1] at 12-71. Each nurse swears that Defendant's automatic-deduction policy “caused me to not be paid for all the time that I worked, ” that they told their managers that they typically did not get lunch breaks, and that Defendant never told them about the “no-lunch” code. See, e.g., id. at 43-45. Each declaration also alleges that Defendant hired the nurses at “an hourly rate of pay for all work.” Id. at 12-71.

         II. Legal Standard

         Courts should grant summary judgment when the moving party shows that no genuine dispute exists as to any material fact and the evidence weighs so heavily in the moving party's favor that the moving party “must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); see also Fed. R. Civ. P. 56. A genuine dispute as to a material fact exists when, based upon the evidence, a reasonable jury could find for the non-moving party. Anderson, 477 U.S. at 248. To show a genuine dispute as to a material fact, the non-moving party must point to “particular materials in the record, ” and cannot rely upon the pleadings or speculation. Olendzki v. Rossi, 765 F.3d 742, 746 (7th Cir. 2014).

         Courts must evaluate evidence in the light most favorable to the non-moving party and must refrain from making credibility determinations or weighing evidence. Rasho v. Elyea, 856 F.3d 469, 477 (7th Cir. 2017) (citing Anderson, 477 U.S. at 255). The moving party bears the burden of establishing the lack of genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         To obtain class certification under Federal Rule of Civil Procedure 23, Plaintiff must satisfy Rule 23(a)'s four requirements-numerosity, commonality, typicality, and adequacy of representation-and one of Rule 23(b)'s subparts. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011). Plaintiff seeks to certify a Rule 23(b)(3) class for her state-law claims, so she must show that: (1) questions of law or fact common to the proposed class predominate over questions affecting only individual members; and (2) a class action is superior to other available options for resolving the controversy. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012).

         Although certifying a class is not “a dress rehearsal for the trial on the merits, ” Plaintiff must demonstrate by a preponderance of the evidence that her proposed class satisfies each of Rule 23's requirements. Id. Thus, the “rigorous analysis” involved in certifying a class often overlaps with the merits of the underlying claim. Wal-Mart, 564 U.S. at 351. For the purposes of certifying a class, this Court does not presume the truth of all well-pleaded allegations. Instead, it can look “beneath the surface” of the second amended complaint [45] to conduct the inquiries that Rule 23 requires. Davis v. Hutchins, 321 F.3d 641, 649 (7th Cir. 2003); Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 677 (7th Cir. 2001). That said, however, this Court may not decline to certify a class simply because it believes the class's claims will fail on the merits. Messner, 669 F.3d at 823; see also Schleicher v. Wendt, 618 F.3d 679, 687 (7th Cir. 2010). Ultimately, Rule 23 tasks this Court with making “whatever factual and legal inquiries are necessary” to determine if a class should be certified, even if those inquiries involve difficult questions related to the case's merits. Am. Honda Motor Co., Inc. v. Allen, 600 F.3d 813, 815 (7th Cir. 2010).

         Unlike Plaintiff's state-law claims, FLSA suits cannot proceed as class actions. Instead, they proceed as “opt-in representative actions, ” or collective actions. Schaefer v. Walker Bros. Enters., 829 F.3d 551, 553 (7th Cir. 2016); see also 29 U.S.C. § 216. Through the conditional certification process, a district court determines whether potential plaintiffs “should be sent a notice of their eligibility to participate and given the opportunity to opt in to the collective action.” Ervin v. OS Rest. Servs., Inc., 632 F.3d 971, 974 (7th Cir. 2011).

         Neither Congress nor the Seventh Circuit has specified exactly how courts should decide FLSA certification issues, but courts in this district generally use a two-step process. See, e.g., Nicks v. Koch Meat Co., Inc., 265 F.Supp.3d 841, 848 (N.D. Ill. 2017) (internal quotation marks omitted). First, a plaintiff must make a “modest factual showing” that she and “similarly situated employees” were “victims of a common policy” that violated the FLSA. Grosscup v. KPW Mgmt., 261 F.Supp.3d 867, 870 (N.D. Ill. 2017). Courts interpret “similarly situated” leniently, meaning plaintiffs need only clear a low bar to meet their burden at step one. Jirak v. Abbott Labs., Inc., 566 F.Supp.2d 845, 848 (N.D. Ill. 2008). During this first stage, courts do not “make merits determinations, weigh evidence, determine credibility, or specifically consider opposing evidence” from the defendant. Bergman v. Kindred Healthcare, Inc., 949 F.Supp.2d 852, 855-56 (N.D. Ill. 2013) (citation omitted). If a plaintiff clears the “similarly situated” hurdle, a court conditionally certifies the FLSA collective action and authorizes the plaintiff to send notice to potential plaintiffs, who may then opt in. Grosscup, 261 F.Supp.3d at 870.

         Second, after the opt-in process finishes and discovery closes, the district court must reevaluate its conditional certification to determine whether the named plaintiff and opt-in plaintiffs share enough similarities to allow the case to go to trial as a collective action. Nicks, 265 F.Supp.3d at 849. The second step imposes more demanding requirements on plaintiffs, id., but is not yet relevant to this case.

         A. FLSA and IMWL Standards

         The FLSA and the IMWL entitle most employees to overtime pay at one-and-a-half times their regular rate for all hours worked beyond 40 in a workweek. 29 U.S.C. § 207; 820 ILCS 105/4a. Courts apply the same analysis for overtime claims under both statutes. See Urnikis-Negro v. Am. Family Prop. Servs., 616 F.3d 665, 672 n.3 (7th Cir. 2010) (collecting cases). Employees bear the burden of proving that they performed overtime work without getting proper compensation. Kellar v. Summit Seating, Inc., 664 F.3d 169, 173 (7th Cir. 2011).

         To succeed on an overtime claim, an employee must show that her employer “had actual or constructive knowledge of her overtime work.” Id. at 177. The FLSA requires an employer to “exercise its control and see that the work is not performed” if the employer does not want the work performed. 29 C.F.R. § 785.13. That duty applies even when the employee fails to officially report overtime hours. Kellar, 664 F.3d at 177 (quoting Chao v. Gotham Registry, Inc., 514 F.3d 280, 288 (2d Cir. 2008)).

         B. IWPCA Standards

         The IWPCA allows employees to seek “the timely and complete payment of earned wages” that their employer owes pursuant to an employment agreement. Enger v. Chi. Carriage Cab Corp., 812 F.3d 565, 568 (7th Cir. 2016) (citing 820 ILCS 115/2-3). In contrast to the FLSA and the IMWL, the IWPCA does not create a substantive right to any particular type of pay (like overtime); it simply “entitles workers to the compensation owed under their employment agreement.” Almy v. Kickert Sch. Bus Line, Inc., 722 F.3d 1069, 1075 (7th Cir. 2013) (citing § 115/2). Under the IWPCA, “agreement” means only that both sides mutually assented to the terms, so parties may enter an agreement “without the formalities and accompanying legal protections of a contract.” Hess v. Kanoski & Assocs., 668 F.3d 446, 452 (7th Cir. 2012) (citation omitted). By the same token, employees and employers can also “set the material terms of the agreement, ” including compensation, “by acting in a manner consistent with an employment agreement.” Landers-Scelfo v. Corp. Office Sys., Inc., 827 N.E.2d 1051, 1059 (Ill.App.Ct. 2005).

         III. Analysis

         Plaintiff seeks conditional certification of her proposed FLSA class and certification of her proposed Rule 23(b)(3) classes for IMWL and IWPCA claims. Defendant seeks summary judgment on all claims. This Court addresses Defendant's summary judgment motion first.

         A. Summary Judgment

         1. FLSA and IMWL Claims

         Both the FLSA and the IMWL entitle Plaintiff to overtime pay for hours she worked beyond 40 in a given workweek, provided Defendant had “actual or constructive knowledge” of that overtime work. Kellar, 664 F.3d at 177. Reading the evidence in the light most favorable to Plaintiff, Anderson, 477 U.S. at 255, this Court partially grants and partially denies Defendant's summary judgment motion.

         Defendant first argues that Plaintiff has no valid overtime claims because she admitted in her deposition that Defendant paid her overtime whenever she worked more than 40 hours in a workweek. Not so. Plaintiff acknowledged that Defendant paid her properly for any recorded overtime, not for every overtime hour she worked. [78-1] at 50. Throughout her deposition, Plaintiff reiterated that she was not paid for time she spent on patient charts after punching out of AW. See, e.g., id. at 10. Also, because Plaintiff has some linguistic difficulties (not speaking English as her native language), see Id. at 8, Defendant's overly technical analysis of how she worded her various deposition answers fails to foreclose her claims.

         Next, Defendant argues that Plaintiff's overtime claims fail because Defendant's policies made employees responsible for accurately recording their time. Defendants contend that, by choosing not to record missed meal breaks and some overtime hours, Plaintiff gave Defendant “no reason to suspect” that she both worked extra time and did not accurately report that time. [76] at 11. Defendant is correct that employers are not liable on overtime claims if they “neither knew nor should have known” that employees worked overtime. Kellar, 664 F.3d at 177. But Defendant “cannot hide behind a policy of having employees keep their own time to avoid compensating the employees for all overtime hours worked, including unrecorded hours.” Skelton v. Am. Intercontinental Univ. Online, 382 F.Supp.2d 1068, 1072 (N.D. Ill. 2005). Regardless of internal policies, the ultimate responsibility for ensuring that timesheets accurately reflect employee hours rests with employers, not employees. See 29 U.S.C. § 211(c); 820 ILCS 105/8; Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946). If Plaintiff can prove at trial that she, in fact, worked uncompensated overtime and that Defendant had actual or constructive knowledge of that work, Kellar, 664 F.3d at 173, 177, then she could prevail despite her inaccurate time sheets.

         Defendant cites a variety of cases granting summary judgment to employers on overtime claims, and characterizes those cases as standing for the proposition that an employee who fails to utilize her employer's procedures for recording and correcting hours cannot succeed on a FLSA claim. See, e.g., [76] at 11 (citing Joiner v. Bd. of Trs. of Flavius J. Witham Mem'l Hosp., No. 13-cv-555, 2014 WL 3543481 (S.D. Ind. July 17, 2014)). Those cases, however, do not say what Defendant wants them to say. In Joiner, for example, the court granted summary judgment not because the plaintiff employees failed to follow their employer's timekeeping policy, but because they provided no evidence that they ever complained to their employer about missed meal breaks. 2014 WL 3543481, at *6. In other words, following the employer's policies could have saved the plaintiffs' FLSA claims by giving their employer notice of overtime, but the plaintiffs also could have given notice in other ways. No. blanket rule exists in the Seventh Circuit barring FLSA claims from employees who fail to follow their employers' timekeeping policies. To the contrary, employers “cannot hide behind a policy of having employees keep their own time” to evade FLSA liability. Skelton, 382 F.Supp.2d at 1072.

         Since Defendant's policies do not legally bar Plaintiff's claim, this Court examines whether Plaintiff shows a genuine dispute as to whether she performed uncompensated overtime work that Defendant knew about. In her deposition, Plaintiff testified that she never got an uninterrupted 30-minute meal break and that “at least one to two times a week” she continued charting after logging out of AW. See, e.g., [78-1] at 13, 34, 40. Defendant disputes Plaintiff's version of events, but because Plaintiff opposes the summary judgment motion, this Court views the evidence in the light most favorable to her. Anderson, 477 U.S. at 255. Thus, Plaintiff shows, based upon “particular materials in the record, ” that a genuine dispute exists as to whether she performed uncompensated overtime work. Olendzki, 765 F.3d at 746.

         As for evidence that Defendant had actual or constructive knowledge of Plaintiff's uncompensated overtime work, Plaintiff testified that she told Assistant Clinical Manager Lisa Brown “most of the time” when she continued working after clocking out. [78-1] at 72. Plaintiff also testified that, during daily morning meetings with the ED nurses on shift, Director Jacqueline Whitten and Manager Patricia Parks learned that nurses could not take 30-minute meal breaks because the ED was short-staffed, and that they told the nurses to “hang in there.” Id. at 20. Plaintiff further stated that at most of the morning meetings, her managers said they were “trying to get new nurses to cover us.” Id. at 39. Read in the light most favorable to Plaintiff, this evidence indicates that Plaintiff's supervisors knew that she worked off the clock to finish charting and knew that she did not get lunch breaks. When a supervisory employee acts within the scope of employment, her knowledge is imputed to her employer. Dana Container, Inc. v. Sec'y of Labor, 847 F.3d 495, 499 (7th Cir. 2017) (citation omitted). Because Plaintiff's supervisors knew about her extra work, Defendant knew too.

         Of course, as Defendant points out, knowing that an employee works overtime is different from knowing that an employee does not get paid for overtime. Defendant argues that Plaintiff fails to show that Defendant knew she did not record her extra time or submit timecard adjustment forms to correct her hours. But Plaintiff testified that managers must approve time cards, [78-1] at 29, and per the undisputed facts, managers must also sign timecard adjustment forms before sending them to payroll, [77] ¶ 31-32, 37. Plaintiff further testified that she felt pressure not to use the “no lunch” code because another nurse said that a manager called her in for a meeting whenever that nurse used the code. See, e.g., [78-1] at 12 (“she was told not to use the no punch lunch for 30-minutes break”). More directly, Plaintiff testified that management pressured her to clock out on time, but still stay late to finish her work. See, e.g., id. at 33 (“we were under pressure-under pressure that we have to punch out on time-irregardless”).

         Moreover, the parties do not dispute that Plaintiff never used a “no lunch” code, [82] ¶ 40, and even though managers heard in daily meetings that Plaintiff and other ED nurses did not get lunch breaks, they continued to approve timecards without “no lunch” codes. Plaintiff also testified that she told her manager once or twice a week that she continued working on patient charts after logging out of AW, but her manager still approved Plaintiff's timecards even though Plaintiff did not submit timecard adjustment forms. [78-1] at 29. Again, a supervisor's knowledge is imputed to the employer. Dana Container, 847 F.3d at 499. And the FLSA obligates every employer “to keep an accurate record” of each employee's hours. Walton v. United Consumers Club, Inc., 786 F.2d 303, 314 (7th Cir. 1986). So, although Plaintiff never reported inaccuracies in her pay stubs to her managers, Defendant had an independent obligation to ensure that its records accurately reflected Plaintiff's work. Interpreting the evidence in the light most favorable to Plaintiff, Anderson, 477 U.S. at 255, this evidence shows a genuine dispute as to whether Defendant knew that Plaintiff worked uncompensated overtime hours.

         Defendant claims that Plaintiff cannot rely on “her own deposition, or self-serving affidavits, to meet her burden of proof” at summary judgment. [76] at 6. But the Seventh Circuit has ruled that plaintiffs can “rely on ‘self-serving' evidence to create a material factual dispute.” Hill v. Tangherlini, 724 F.3d 965, 967 n.1 (7th Cir. 2013) (overruling a line of cases holding otherwise). Indeed, if Defendant was correct, the moving party at summary judgment could simply fall back on using the “self-serving” label to evade “perfectly admissible evidence through which a party tries to present its side of the story at summary judgment.” Id. at 967. Here, a reasonable factfinder could rely upon Plaintiff's testimony to conclude that Plaintiff worked uncompensated overtime hours with Defendant's knowledge.

         Finally, Defendant argues that it merits summary judgment on Plaintiff's overtime claims for any workweek in which Plaintiff could not have worked more than 40 hours. In her response to Defendant's motion, Plaintiff concedes that her claims remain limited to 24 particular weeks: “she worked over 40 hours in 22 work weeks and worked between 38.5 and 40 hours in 2 work weeks. Those are the weeks in which Plaintiff seeks unpaid overtime wages under the FLSA and IMWL for the additional unpaid hours she worked.” [80] at 15 (emphasis added). Based upon the record, no genuine issue of material fact precludes granting Defendant's summary judgment motion as to Plaintiff's FLSA and IMWL claims for any other unidentified ...

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