United States District Court, N.D. Illinois, Eastern Division
RICHARD SINGER, individually and on behalf of all others similarly situated, Plaintiff,
PACE SUBURBAN BUS SERVICE, Defendant.
MEMORANDUM OPINION AND ORDER
Singer filed this putative class and collective action
against Pace Suburban Bus Service and Regional Transportation
Authority (“RTA”), bringing minimum wage and
overtime claims under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq.,
and the Illinois Minimum Wage Law (“IMWL”), 820
ILCS 105/1 et seq., and a failure to pay contractual
wages claim under the Illinois Wage Payment and Collection
Act (“IWPCA”), 820 ILCS 115/1 et seq.
Doc. 2. Defendants moved to dismiss, Doc. 21, and the court
granted the motion in part, dismissing without prejudice the
IWPCA claim and the FLSA and IMWL minimum wage claims, Docs.
37-38 (reported at 338 F.Supp.3d 791 (N.D. Ill. 2018)).
Singer repleaded, alleging FLSA and IMWL minimum wage and
overtime claims and a quantum meruit claim. Doc. 61.
Defendants again moved to dismiss, Doc. 63, and the court
granted the motion in part, dismissing all claims against
RTA, the FLSA and IMWL minimum wage claims against Pace, and
the quantum meruit claim against Pace to the extent
it sought recovery other than for regular, non-overtime
wages, Doc. 74. Pace now moves for summary judgment on the
remaining claims: the FLSA and IMWL overtime claims, and the
quantum meruit unpaid regular wage claim. Doc. 82.
The motion is denied.
court sets forth the facts as favorably to Singer as the
record and Local Rule 56.1 permit. See Johnson v.
Advocate Health & Hosps. Corp., 892 F.3d 887, 893
(7th Cir. 2018). At this juncture, the court must assume the
truth of those facts, but does not vouch for them. See
Gates v. Bd. of Educ. of Chi., 916 F.3d 631, 633 (7th
is a bus operator employed by Pace. Doc. 99 at ¶ 41. He
reported working 37-38 hours per week in 2015, over 41 hours
per week in 2016, and about 45 hours per week in 2017.
Id. at ¶¶ 45-46. He was assigned
exclusively to the North Shore Garage at all relevant times.
Id. at ¶ 42.
start of each run, Pace bus operators receive a trip sheet
that they turn in to the dispatch office at day's end.
Id. at ¶ 20. Trip sheets set forth how long an
operator's runs should take and serve as a record for
when the operator punches in and out. Id. at
¶¶ 14, 20. Singer would punch in at the beginning
of his work day at the North Shore Garage, which has a time
clock at the dispatcher's window. Id. at
¶¶ 47-48. If there was no time clock at the
location where he punched out, Singer would use his watch to
determine the punch out time. Id. at ¶ 50.
Pace buses at the North Shore Garage have a GPS-based
location tracking system called the Intelligent Bus System
(“IBS”). Id. at ¶ 15. The IBS
records the bus's location, the time the bus was at that
location, and the time the engine was turned on and off.
Ibid. Singer did not use the IBS to record his punch
out time because shutting off the bus's engine would turn
off the IBS and he had to perform other work tasks after
shutting off the engine. Id. at ¶ 51. In
addition, Singer experienced the IBS as unreliable, as it
frequently would indicate that he had completed his route
prior to his return to the North Shore Garage. Doc. 103 at
¶¶ 17-18. (Singer's assertions regarding his
experiences with the IBS are not, as Pace submits, “the
product of hearsay, speculation and conclusions of [Singer]
not supported by admissible evidence, ” ibid.,
as Singer supports his assertions with his declaration and
bus operator at the North Shore Garage works longer than the
expected time set forth on the trip sheet, he must complete a
pay exception slip-called a “pink slip”-which
details the amount of and reason for the excess time. Doc. 99
at ¶ 23; Doc. 103 at ¶ 1. A supervisor then reviews
the excess time and, if the time is approved, initials it.
Doc. 103 at ¶ 2. Approximately one hundred times over a
three-year period, Singer's handwritten pink slip times
were crossed out and replaced with shorter times. Doc. 99 at
¶¶ 55, 66. Singer does not know why Pace subtracted
time from his pink slips. Id. at ¶ 64. The
subtractions resulted in unpaid wages of between $500 and
$600. Id. at ¶¶ 67, 69; Doc. 103 at ¶
noted, Singer's remaining claims are: (1) he worked
overtime for which he was not paid, in violation of the FLSA
and the IMWL; and (2) he was not paid for all his regular
time and is entitled to payment under the quantum
FLSA and IMWL Overtime Claims
FLSA requires employers to pay overtime “at a rate not
less than one and one-half times” their regular hourly
wage. 29 U.S.C. § 207(a)(1); see DeKeyser v.
Thyssenkrupp Waupaca, Inc., 735 F.3d 568, 570 (7th Cir.
2013). “Under the FLSA, employees are entitled to
overtime pay for any hours worked over forty hours per week
… .” Blanchar v. Standard Ins. Co., 736
F.3d 753, 756 (7th Cir. 2013).
seeks summary judgment on the ground that the record would
not allow a reasonable jury to find that Singer worked
compensable overtime for which he was not paid. Doc. 83 at
6-9. Citing Turner v. The Saloon, Ltd., 595 F.3d
679, 691 (7th Cir. 2010), Pace maintains that Singer has not
“produce[d] sufficient evidence to show the amount and
extent of that [compensable] work as a matter of just and
reasonable inference.” Doc. 83 at 6 (internal quotation
marks omitted). In Turner, however, the plaintiff
adduced no evidence as to the amount of overtime pay he was
denied, and instead simply disputed the accuracy of his
employer's records. Turner, 595 F.3d at 690-91
& n.8. Here, by contrast, Singer adduces his handwritten
pink slips as a record of the compensable time he worked, and
he confirmed the accuracy of those pink slips through his
declaration and deposition testimony. Doc. 99 at ¶¶
55, 66-67 (citing Doc. 100 at ¶ 11; Doc. 97-2 at
70:18-71:12, 139:14-20); Doc. 103 at ¶¶ 3, 6
(citing Doc. 97-2 at 144:16-25, 187:10-11; Doc. 100 at ¶
9). Moreover, and contrary to Pace's submission, Doc. 83
at 7-8, Singer may use his own declaration and deposition
testimony to create a material factual dispute as to whether
Pace paid him for all the compensable time he worked. See
Hill v. Tangherlini, 724 F.3d 965, 967 & n.1 (7th
Cir. 2013) (overruling cases suggesting that a
plaintiff's “self-serving” testimony is
insufficient to create a genuine factual dispute at summary
judgment); Kellar v. Summit Seating Inc., 664 F.3d
169, 175 (7th Cir. 2011) (“Absent a finding, not made
here, that the usual requirements for evidence at the summary
judgment stage were not met, evidence presented in a
‘self-serving' affidavit or deposition is enough to
thwart a summary judgment motion. [The plaintiff's]
deposition testimony created a factual dispute, and the court
was not free to resolve it in [the defendant employer's]
favor.”) (internal citation omitted).
argues in the alternative that any uncompensated overtime
work Singer performed was de minimis and thus not
covered by the FLSA. Doc. 83 at 9-12. “The de
minimis doctrine allows employers to disregard otherwise
compensable work when only a few seconds or minutes of work
beyond the scheduled working hours are in dispute.”
Kellar, 664 F.3d at 176. The doctrine's purpose
is to account for “the practical administrative
difficulty of recording ...