United States District Court, N.D. Illinois, Eastern Division
CRIXENIA MAGPAYO, individually and on behalf of all others similarly situated, Plaintiff,
ADVOCATE HEALTH AND HOSPITALS CORPORATION, Defendant.
MEMORANDUM OPINION AND ORDER
ROBERT BLAKEY, UNITED STATES DISTRICT JUDGE.
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
, and Defendant moved for summary judgment . For the
reasons explained below, this Court grants Plaintiff's
motion and partially grants Defendant's motion.
following facts come from Defendant's Local Rule 56.1
statement of material facts  and Plaintiff's Local
Rule 56.1 statement of additional facts .
operates Advocate Trinity Hospital (Trinity).  ¶ 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.  ¶ 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. 
¶ 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.”  ¶ 4. Plaintiff
signed the letter and returned it to Defendant on her first
day of work in April 2012.  ¶ 5.
most of her time in the ED, Plaintiff worked “registry,
” which meant that she had a flexible schedule. 
¶ 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.  ¶
39. While working in the ED, Plaintiff recorded her hours
using AdvocateWorks (AW), Defendant's electronic
timekeeping system.  ¶ 13.
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. ¶
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,  ¶ 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.
testified that, on some occasions, she continued working on
patient charts after clocking out of AW.  ¶ 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.”  ¶ 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.  ¶ 48.
Class and Collective Action Allegations
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.  ¶ 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.
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.
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.
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
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).
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  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
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).
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.
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.
FLSA and IMWL Standards
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).
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
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).
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.
FLSA and IMWL Claims
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
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.
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.  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.
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.,  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.
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
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.
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,  ¶ 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
the parties do not dispute that Plaintiff never used a
“no lunch” code,  ¶ 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.
claims that Plaintiff cannot rely on “her own
deposition, or self-serving affidavits, to meet her burden of
proof” at summary judgment.  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.
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.”
 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 ...