United States District Court, N.D. Illinois, Eastern Division
JOSE BALDEMAR ESCUDERO, on behalf of himself and other similarly situated individuals, Plaintiff,
ACRES GROUP, and JAMES SCHWANTZ, individually, Defendants.
MEMORANDUM ORDER AND OPINION
JOHNSON COLEMAN, UNITED STATES DISTRICT COURT JUDGE.
Jose Baldemar Escudero filed a three-count amended complaint
against Defendants Acres Maintenance, Inc. (“Acres
Group”) and James Schwantz, alleging their failure
to pay Escudero and other similarly situated employees
overtime wages for all time worked in excess of forty hours
in a workweek in violation of the Fair Labor Standards Act,
29 U.S.C. § 201 et seq., the Illinois Minimum
Wage Law, 820 ILCS 105/1 et seq.
(“IMWL”), and the Illinois Wage Payment and
Collection Act, 820 ILCS 115/1 et seq.
(“IWPCA”). Defendants have moved to dismiss Count
III, pertaining to the IWPCA claims, pursuant to Federal Rule
of Civil Procedure 12(b)(6). For the reasons outlined below,
the Court grants Defendants' partial motion to dismiss
Escudero's amended complaint .
Jose Baldemar Escudero worked for Defendant Acres Group for
approximately 26 years as a landscaper and a foreman
overseeing a three-person crew. Escudero alleges that he
performed his duties pursuant to a collective bargaining
agreement (“CBA”) between Acres Group and the
Production Workers Union Local 707 (“Local 707”)
and under other unspecified “terms agreed to between
him and Defendants.” Escudero attached the CBA in
effect from December 1, 2016 to November 30, 2019 to the
complaint. He alleges that for the past 10 years, he and
other similarly situated employees spent time off-the-clock
performing “preparatory and post work” for which
Defendants failed to provide compensation. (Dkt. 21 ¶ 18
.) He states Defendants knew about and caused him to work
off-the-clock by instructing him to clock in at 6:30 a.m. and
clock out at 3 p.m. each day. However, Escudero regularly
arrived at approximately 6 a.m. and worked prior to clocking
in at 6:30 a.m. Despite having clocked out, Escudero says he
regularly worked past 3 p.m. As a result of performing
off-the-clock duties in addition to his regular schedule,
Escudero alleges he and similarly situated employees worked
more than 40 hours per week, which entitles them to overtime
compensation that they never received.
motion to dismiss pursuant to Rule 12(b)(6) for failure to
state a claim tests the sufficiency of the complaint, not its
merits. See Camasta v. Jos. A. Bank Clothiers, Inc.,
761 F.3d 732, 736 (7th Cir. 2014). When considering dismissal
of a complaint, the Court accepts well pleaded factual
allegations as true and draws all reasonable inferences in
favor of the plaintiff. Erickson v. Pardus, 551 U.S.
89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Trujillo
v. Rockledge Furniture LLC, 926 F.3d 395, 397 (7th Cir.
2019). To survive a motion to dismiss, plaintiff must
“state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
Threadbare recitals of the elements of a cause of action and
allegations that are merely legal conclusions are not
sufficient to survive a motion to dismiss. Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
argue that Escudero fails to allege the existence of an
agreement that entitles him to overtime pay for his
off-the-clock work, as required by the IWPCA. Further,
Defendants assert that the CBA between Acres Group and Local
707 “makes no reference to work performed in advance of
or following the substantive work that begins when an
employee clocks in for his shift.” (Dkt. 28 at 5.)
IWPCA requires employers to pay “every employee all
wages earned during the semimonthly pay period.” 820
ILCS 115/3. “Wages” are defined as “any
compensation owed an employee by an employer pursuant to an
employment contract or agreement between the 2 parties, where
the amount is determined on a time, task, piece, or any other
basis of calculation.” 820 ILCS 115/2. Under the IWPCA,
the plaintiff must demonstrate that his former employer owes
compensation pursuant to an employment agreement. Almy v.
Kickert Sch. Bus Line, Inc., 722 F.3d 1069, 1075 (7th
Cir. 2013) (per curiam). The IWPCA requires only that
“‘the employer honor his contract.'”
Singer v. Reg'l Transportation Auth., 338
F.Supp.3d 791, 797 (N.D. Ill. 2018) (Feinerman, J.) (quoting
Nat'l Metalcrafters, Div. of Keystone Consol. Indus.
v. McNeil, 784 F.2d 817, 824 (7th Cir. 1986)). Under the
IWPCA, an agreement is broader than a contract and
“requires only a manifestation of mutual assent on the
part of two or more persons.” Hess v. Kanoski &
Assocs., 668 F.3d 446, 452 (7th Cir. 2012) (internal
quotation marks omitted).
adequately pleads that his employment was subject to an
agreement. Although the Court finds that Escudero's
passing reference to an unspecified agreement between
Defendants and Escudero lacks sufficient detail to adequately
state a claim, Escudero also points to CBAs that applied to
him. The most recent version of the CBA states employees are
to be paid the overtime rate of time and a half for hours
worked over the 40-hour threshold in any one week. (Dkt.
21-3, CBA, Art. 7 § 2.) The CBA defines scope of work as
“all work historically performed in the maintenance
landscape industry” that includes “but [is] not
be limited to” such duties as “loading and
unloading of equipment from trucks” and “sweeping
and clean-up.” (Id. at Art. 1.) Both are
duties that plausibly encompass the kind of
“preparatory and post work” Escudero alleges he
performed. Thus, Escudero sufficiently alleges that the CBA
is an agreement subject to the IWPCA that entitles him to
overtime pay for his off-the-clock work.
Defendants assert that Escudero's IWPCA claim fails
because he alleges violations over a 10-year period, but only
provides proof of an employment agreement dating back to
December 1, 2016. Defendants contend that in order to prevail
on an IWPCA claim, Escudero must demonstrate that a valid
employment agreement existed at the time of the violation.
(Dkt. 28 at 5.) Here, Escudero alleges CBAs between Acres
Group and Local 707 governed his employment at all relevant
times; Escudero only attached to his pleadings the CBA in
effect when terminated. Failure to attach the prior
discoverable contracts, however, does not defeat the claim at
this stage where the Court takes Escudero's well-pleaded
facts and permissible inferences as true. See Horowitz v.
Animal Emergency & Treatment Centers of Chicago,
LLC, No. 1:12-cv-2561, 2012 WL 3598807, at *8 (N.D. Ill.
Aug. 20, 2012) (St. Eve, J.).
argue in the alternative that if the CBA is relevant,
Escudero's IWPCA claim is preempted under Section 301 of
the Labor Management Relations Act (“LMRA”) of
1947, 29 U.S.C. §185(a), and must be dismissed. Section
301 preempts all state law claims that require the
interpretation of a CBA or any other covered labor contract.
Crosby v. Cooper B-Line, Inc., 725 F.3d 795, 797
(7th Cir. 2013). Such preempted state law claims include
those that are “inextricably intertwined with
consideration of the terms of the labor contract”
(id. at 800) and those in which a CBA provision is
the subject of the dispute. Caterpillar, Inc. v.
Williams, 482 U.S. 386, 394, 107 S.Ct. 2425, 96 L.Ed.2d
318 (1987). To determine whether a state claim is preempted,
the court must “look beyond the face of plaintiff's
allegations and the labels used to describe her claims and
... evaluate the substance of plaintiff's
claims.” Crosby, 725 F.3d at 800 (internal
citation and quotation marks omitted). A state law claim that
turns on the meaning of a CBA will escape preemption when
“the particular contractual provision is so clear as to
preclude all possible dispute over its meaning.”
Baker v. Kingsley, 387 F.3d 649, 658 (7th Cir.
2004); see also Wis. Cent., Ltd. v. Shannon, 539
F.3d 751, 758 (7th Cir. 2008). Preemption applies where the
parties' respective interpretations of the agreement are
arguable or plausible. Baker, 387 F.3d at 659.
parties disagree regarding whether a dispute exists
concerning the CBA language. Escudero contends the language
is abundantly clear while Defendants argue the scope of work
as defined in the CBA is ambiguous and requires court
interpretation. Escudero argues that the CBA clearly defines
work covered by the agreement, including preparatory work
such as loading and unloading equipment. In contrast,
Defendants contend that the CBA makes no reference to
work-related tasks employees may perform before or after
their shift and that it does not clearly define work to
include off-the-clock ...