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Perizes v. Dietitians at Home, Inc.

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

June 28, 2019

Angela Perizes and Danielle Rivera, individually and on behalf of all other similarly situtated, Plaintiffs,
v.
Dietitians at Home, Inc., Defendant.

          MEMORANDUM OPINION AND ORDER

          HONORABLE THOMAS M. DURKIN UNITED STATES DISTRICT JUDGE.

         Angela Perizes and Danielle Rivera allege that their former employer, Dietitians at Homes, Inc., failed to pay them proper wages in violation of the Fair Labor Standards Act, the Illinois Minimum Wage Law, the Chicago Minimum Wage Ordinance, and the Illinois Wage Payment and Collection Act. Defendant has moved to dismiss the claims for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). R. 10. That motion is denied in part and granted in part.

         Legal Standard

         A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v. Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), sufficient to provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an unadorned, the-defendant- unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d 362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard, the Court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).

         Background

         Defendant provides nutrition therapy services to people with diabetes and kidney disease in the Chicago and northern Indiana region. See Dietitians at Home website, https://www.dietitiansathome.com/ (last visited June 28, 2019). To provide this service, Defendant hires registered dietitians to visit patient homes and counsel patients on nutrition and diet. See Dietitians at Home website, “What is Medical Nutrition Therapy (MNT)?” https://www.dietitiansathome.com/medical-nutrition-therapy-mnt (last visited June 28, 2019). These services are funded by Medicare. R. 1 ¶ 11. Defendants provided Plaintiffs with a vehicle and the equipment required to perform this counseling. Id.

         Plaintiff Perizes worked for Defendant as a registered dietitian from June 2017 until September 2018. R. 1 ¶ 11. Plaintiff Rivera worked for Defendant as a registered dietitian from November 2017 until May 2018. Id. At the outset of their employment, Plaintiffs received written “offers” of employment. Id. ¶¶ 14-15. Plaintiffs allege that Perizes's offer “indicated” that she would earn a minimum of $53, 884 annually. Id. ¶ 30. However, in seven months of work in 2017, Perizes was paid only $17, 778.50, i.e., less than half of the indicated annual amount. Id. Plaintiffs do not provide greater detail about the “offer” of $53, 884 other than alleging that the amount was “indicated.”

         Plaintiffs' “offers” also included “compensation packages” explaining that they would be compensated at a rate of $6.50 for every 15 minute period they spent visiting a patient, with a patient appointment typically lasting one hour. Id. ¶¶ 16, 20. Plaintiffs were also entitled to receive a “volume bonus” if they saw six or more patients in a single day. Id. ¶ 20. Plaintiffs were not paid for travel or waiting time in between patient appointments. Id. ¶ 27. Defendant controlled the scheduling of appointments. Id. ¶ 20. The number of appointments scheduled in any given day for a single registered dietitian varied widely from zero to ten. Id. Appointments were always scheduled on the hour regardless of the distance between patients' homes, which often forced Plaintiffs to run behind or cut appointments short. Id. Plaintiffs were not compensated for patient cancelations. Id. Plaintiffs were not paid for meal or rest breaks. Id. ¶ 23.

         Sometimes, these circumstances caused Plaintiffs to work more than 40 hours per week. Id. ¶ 23. But regardless of the number of hours actually worked, Plaintiffs were instructed to report eight hours of work in the payroll system. Id. ¶ 25.

         Based on these alleged facts, Plaintiffs bring three claim (under various statutes): (1) failure to pay overtime; (2) failure to pay the minimum wage to “at least one member of the proposed class, ” id. ¶ 28, and (3) failure to pay wages in accord with the “offer of employment” Plaintiffs signed.

         Analysis

         I. Commerce

         As an initial matter, Defendant argues that Plaintiffs fail to allege the “commerce” element of a claim under the FLSA. See R. 10 at 2. The FLSA applies to any employee who is “engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce.” 29 U.S.C. §§ 206(a), 207(a)(1). ...


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