United States District Court, N.D. Illinois, Eastern Division
S. Shah U.S. District Judge.
motion to dismiss count IV of the second amended complaint,
, is granted. Count IV of the second amended complaint is
dismissed without prejudice.
Fatima Carrasco (on behalf of herself and a conditionally
certified collective action of opt-in plaintiffs) alleges
that her former employer, defendant Freudenberg Household
Products LP, promised her (and her former coworkers) that
they would be paid for time they were required to be at work
even if they were not actively working.  ¶¶ 23,
54-56. She points out that Freudenberg made that
promise in its employee handbook,  ¶ 55, and does
not rule out the possibility that Freudenberg made that same
promise somewhere else (e.g., in some other document or via
verbal statements or courses of conduct). See Id.
¶¶ 51-62. Instead of delivering on that promise,
Carrasco says that Freudenberg “shav[ed] employee's
time clocks” and “shaved time from its
employees' paychecks” in violation of the Illinois
Wage Payment and Collections Act.  ¶¶ 52, 59,
61, 62 (citing 820 Ill. Comp. Stat. 115/4, 115/9).
response () to Freudenberg's motion to dismiss
that claim under Federal Rule of Civil Procedure 12(b)(6),
, Carrasco elaborates on those allegations. She says that
Freudenberg had a policy of rounding clock-in and clock-out
times to the nearest ten-minute increment.  at 3-4; 
at 5-7. She also attaches archived time card reports that
show occasional inconsistencies in the way that policy was
being implemented. [81-2]. For instance, on at least one
occasion, an employee that clocked in at 1:51 p.m. and
clocked out at 10:08 p.m. was credited with eight hours and
ten minutes of time spent working. See [81-2] at 1.
On another occasion, an employee that clocked in at 1:48 p.m.
and out at 12:00 a.m. was credited with exactly ten hours of
time spent working. Id. at 2. Carrasco says these
instances of rounding error are representative, not
exhaustive.  at 3-4.
complaint must contain a short and plain statement that
plausibly suggests a right to relief. Ashcroft v.
Iqbal, 556 U.S. 662, 677-78 (2009); Fed.R.Civ.P.
8(a)(2). In ruling on a motion to dismiss, although a court
must accept all factual allegations as true and draw all
reasonable inferences in the plaintiffs' favor, the court
need not do the same for legal conclusions or
“threadbare recitals” supported by only
“conclusory statements.” Ashcroft, 556
U.S. at 678, 80-82. A claim does not need to “include
every detail or fact” relevant to the allegation, but
must “present a story that holds together.”
Reed v. Palmer, 906 F.3d 540, 548 (7th Cir. 2018).
See also Hirst v. Skywest, Inc., 910 F.3d 961, 966
(7th Cir. 2018), cert. denied, 139 S.Ct. 2745 (2019)
(the complaint must “provide some factual context that
will nudge [the] claim from conceivable to plausible”).
I have jurisdiction to hear Carrasco's claim under the
Fair Labor Standards Act because it arises under federal law,
29 U.S.C. §§ 201-219; 28 U.S.C. § 1331, and
supplemental jurisdiction over Carrasco's Wage Payment
and Collections Act claim under 28 U.S.C. § 1367(a).
Wage Payment and Collections Act requires that wages be paid
within proscribed periods of time. 820 Ill. Comp. Stat. Ann.
115/4. See also Enger v. Chicago Carriage Cab Corp.,
812 F.3d 565, 567 (7th Cir. 2016) (employees may sue their
employers under the Act if their employers fail to make
“timely and complete payment of earned wages”).
The Act defines “wages” to mean “any
compensation owed an employee by an employer pursuant to an
employment contract or agreement between the 2
parties.” 820 Ill. Comp. Stat. Ann. 115/2. It does not
define “owed.” Majmudar v. House of Spices
(India), Inc., 2013 IL App (1st) 130292, ¶ 14
(“The plain and ordinary meaning of the word
‘owe' is ‘to be under obligation to pay or
repay in return for something received: be indebted in the
alleges that there were times at which she was required to be
at work, that Freudenberg had agreed to pay her for being
there even if she was not actively working, and that she was
not paid the wages she was due under that agreement. 
¶¶ 54, 56;  at 4-5. Carrasco did not plead each
specific instance on which she was underpaid, or the exact
time she was required to be at work each day, or the reason
she thought she had to be there at that time. See
;  at 9-10. But she did not need to “include
every detail or fact” relevant to her allegations so
long as she “present[ed] a story that holds
together.” Reed, 906 F.3d at 548.
order to state a claim under the Act, Carrasco needs to show
that she and Freudenberg had a valid contract or employment
agreement. Hess v. Kanoski & Assocs., 668 F.3d
446, 452 (7th Cir. 2012). The term “agreement” is
broader than the term “contract.” Id.
(quoting Zabinsky v. Gelber Grp., Inc., 347
Ill.App.3d 243, 249 (1st Dist. 2004)). An agreement
“requires only a manifestation of mutual assent,
” Zabinsky, 347 Ill.App.3d at 250, and does
not need to be “formally negotiated.”
Landers-Scelfo v. Corporate Office Sys., Inc., 356
Ill.App.3d 1060, 1067-68 (2nd Dist. 2005). An employer may
communicate to the employee the terms of such an agreement
via conduct alone. Id.; Wharton v. Comcast
Corp., 912 F.Supp.2d 655, 660 (N.D. Ill. 2012);
Schultze v. ABN AMRO, Inc., 2017 IL App (1st)
162140, ¶ 23, appeal denied, 93 N.E.3d 1080
(2017) (“employers and employees may manifest mutual
assent by conduct alone, including past practice”).
employee handbook is not an enforceable contract.
See [75-1].It contains an explicit disclaimer making
clear that it is “not a contract or an offer of
employment” or an “enforceable promise of any
kind.” [75-1] at 7. That disclaimer forecloses the
possibility that either party could have reasonably believed
that the employee handbook indicated an assent to be bound.
See Garcia v. Kankakee Cty. Hous. Auth., 279 F.3d
532, 536 (7th Cir. 2002) (“[d]isclaimers of this kind
are enough in Illinois to show that the handbook does not
create legal rights”). In the cases cited where
employee handbooks were found to constitute a binding
contract, the handbooks did not contain a similarly explicit
disclaimer. See Zamudio v. Nick & Howard
LLC, No. 15 C 3917, 2015 WL 6736679, at *4 (N.D. Ill.
Nov. 4, 2015); Duldulao v. Saint Mary of Nazareth Hosp.
Ctr., 115 Ill.2d 482, 491 (1987) (“the handbook
contains no disclaimers to negate the promises made”).
It does not matter that the disclaimer was not labeled a
disclaimer, because the bold and underlined text makes its
effect apparent without the need for a label. Carrasco cannot
use the language within the employee handbook to support her
claim. See, e.g.,  ¶¶ 54,
that does not mean that Carrasco cannot establish that an
agreement existed. Even if a disclaimer in a handbook
prevents the handbook from becoming a binding contract, that
same disclaimer “does not preclude an agreement by two
or more persons regarding terms set forth in the handbook
relating to compensation to which both have otherwise
assented.” Montero v. JPMorgan Chase &
Co., No. 14 CV 9053, 2016 WL 7231604, at *6 (N.D.
Ill.Dec. 14, 2016) (quoting Ill. Admin. Code tit. 56, §
300.450); Watts v. ADDO Mgmt., L.L.C., 2018 IL App
(1st) 170201, ¶¶ 18-19 (Illinois courts look to
regulations issued by Illinois's Director of Labor for
guidance when interpreting the Illinois Wage Payments and
Collections Act). Carrasco's second amended complaint
mentions a section of the employee handbook,  ¶ 55,
and even discusses legal principles related to whether
employee handbooks can constitute contracts under the Act,
id. ¶ 58, but does not explicitly limit her
claim to that handbook. See  ¶¶ 51-62.
Freudenberg's reading of the complaint is too narrow, and
Carrasco's response to the motion to dismiss confirms
that some portion of her claim is premised on an agreement
that exists beyond the text of the employee handbook and was
communicated via conduct.  at 3-5. Carrasco may still
have stated a claim under the Act if she has plausibly
alleged that someone at Freudenberg, either through their
words or actions, made Carrasco and others the same promise
as that contained in the employee handbook. See
[75-1] at 46.
attached archived time card reports to her response brief,
but those reports show that the rounding errors she complains
about were rare and sporadic. See [81-2]. They also
contain a column that indicates the employee's
“schedule, ” and that appears to contain start
and finish times for each shift. Id. The reports
show that the errors mostly (if not exclusively) occurred
when an employee showed up between ten and fifteen minutes
before the employee's scheduled start time or stayed a
few minutes after the employee's shift ended. See
Id. So even when there were rounding errors, those
errors do not appear to have resulted in an employee being
credited fewer hours than the employee was scheduled to work.
N. Indiana Gun & Outdoor Shows, Inc. v. City of S.
Bend, 163 F.3d 449, 454 (7th Cir. 1998) (“when a
written instrument contradicts allegations in the complaint
to which it is attached, the exhibit trumps the
allegations”). See also Weil v. Metal Techs.,
925 F.3d. 352, 357 (7th Cir. 2019) (under a comparable
statute, the Fair Labor Standards Act, “employees who
clock in early do not have to be paid so long as they are not
working”); Hirst, 910 F.3d at 965 (also
under the Fair Labor Standards Act, it is not enough to claim
to have “worked many hours” and cite
“several weeks in which [one was] paid the minimum
wage”). In other words, the reports render implausible
Carrasco's claim that she and her coworkers were not paid
for time they were required to be at work because those
reports show that she and her coworkers were paid for the
time they were scheduled (i.e., required) to be at work.
Nowhere in Carrasco's second amended complaint or
briefing does she plausibly allege that Freudenberg required
her or her coworkers to be at work outside of those scheduled
regards to the rounding errors themselves, neither
party's math adds up. For instance, during the week of
June 8, 2015 (discussed in Carrasco's response brief),
one employee appears to have clocked in about ten minutes
early every day. [81-2] at 2. Carrasco says Freudenberg did
not give that employee credit for any of those additional
ten-minute increments. See  at 4. Freudenberg
says they gave that employee credit for all of them.  at
9-10 n.8. According to the reports, the employee in question
appears to have worked one eight-hour day, two ten-hour days,
and two twelve-hour days, and appears to have clocked in ten
minutes early on each day. [81-2] at 2. The employee appears
to have been credited with only twelve hours and thirty
minutes of overtime pay, when one would have expected that
employee to have been credited with twelve hours and fifty
minutes of overtime pay. Id.
reports suggest that there was something strange about the
way Freudenberg was paying Carrasco and her coworkers. But
they contradict a central assumption of Carrasco's claim:
that she was owed payment for the hours she was working. When
considered together with the reports Carrasco has submitted,
the allegations in her complaint do not support a plausible
claim that Freudenberg required Carrasco and her coworkers to
arrive at work ten minutes early each day. Absent a factual
allegation that someone at Freudenberg told Carrasco and her
coworkers that they had to show up ten ...