United States District Court, N.D. Illinois, Eastern Division
Angela Perizes and Danielle Rivera, individually and on behalf of all other similarly situtated, Plaintiffs,
Dietitians at Home, Inc., Defendant.
MEMORANDUM OPINION AND ORDER
HONORABLE THOMAS M. DURKIN UNITED STATES DISTRICT JUDGE.
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
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.
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)?”
(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
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.”
“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.
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.
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.
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),