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Singer v. Pace Suburban Bus Service

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

December 3, 2019

RICHARD SINGER, individually and on behalf of all others similarly situated, Plaintiff,


          Gary Feinerman, Judge

         Richard 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.


         The 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 Cir. 2019).

         Singer 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.

         At the 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.

         All 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 deposition testimony.)

         If a 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 ¶ 3.


         As 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 meruit doctrine.

         I. FLSA and IMWL Overtime Claims

         The 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).

         Pace 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).

         Pace 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 ...

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