United States District Court, N.D. Illinois, Eastern Division
DMITRI GABRYSZAK & JULIE CARLOCK, on behalf of themselves and all other similarly situated, Plaintiffs,
AURORA BULL DOG CO., Defendant.
MEMORANDUM OPINION AND ORDER
B. KIM UNITED STATES MAGISTRATE JUDGE.
Gabryszak and Julie Carlock have sued Aurora Bull Dog Company
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., alleging that they and other similarly situated
individuals were underpaid during their time working as
servers at the Bulldog Ale House, a restaurant owned and
operated by Defendant. According to Plaintiffs, managers at
the Bulldog Ale House shaved time from their time sheets to
avoid paying them for the hours they worked and to skirt
Defendant's obligations to pay minimum and overtime
wages. They also allege that Defendant failed to provide them
with adequate notice of its intent to take a tip credit
against their wages, in violation of federal
the court is Plaintiffs' motion for summary judgment and
for an adverse inference for the destruction of data. (R.
102.) For the following reasons, the motion is granted in
part and denied in part:
initial matter, the court notes that its task in discerning
which facts in this case are material and undisputed has been
made difficult by both parties' failure to adhere
strictly to the standards set out in Local Rule 56.1. As
described in significant detail in Malec v. Sanford,
191 F.R.D. 581 (N.D. Ill. 2000)-a case Plaintiffs cite in
their reply brief-compliance with Local Rule 56.1 is crucial
at the summary judgment phase. That is because
“[f]actual allegations not properly supported by
citation to the record are nullities, ” and failing to
properly respond to an opponent's supported fact
statements can result in those facts being deemed admitted.
Id. at 583-84.
the parties' respective fact submissions fall short of
Local Rule 56.1's standards in several respects. For
example, in their statement of undisputed facts Plaintiffs
include a number of paragraphs making legal assertions or
referencing what they “allege, ” citing nothing
but their complaint. It is inappropriate to include legal
conclusions in a Rule 56 fact statement, see Malec,
191 F.R.D. at 583, and at the summary judgment stage the
plaintiff is required to point to evidence, not rely on the
allegations in a complaint, see Estate of Perry v.
Wenzel, 872 F.3d 439, 461 (7th Cir. 2017). Accordingly,
the court disregards the statements set forth in paragraphs
1-2, 5, and 10-12 of Plaintiffs' Rule 56.1 statement of
to support statements asserting that Defendant changed time
records and lost data, Plaintiffs rely on attorney emails
that do not directly or specifically support their assertions
and cite to long exhibits (e.g., Exhibit 5 is 193 pages long)
without signaling which pages of those exhibits support the
factual assertion for which they are cited. (R. 124,
Pls.' Facts ¶¶ 15-16.) The party presenting
undisputed facts must include specific references to
supportive evidence, meaning they must “include page
(or paragraph) numbers, as opposed to simply citing an entire
deposition, affidavit, or other exhibit document.”
Malec, 191 F.R.D. at 583. The lack of specific
citations makes it impossible for the court to confirm the
accuracy of the statements set out in paragraphs 15 and 16 of
Plaintiffs' fact statement, so the court must disregard
most significant lapse in the treatment of the facts here
results from what appears to have been an oversight. In their
reply brief Plaintiffs assert that the court should not
consider any reference to Defendant's Counterstatement of
Undisputed Facts (“CSF”) because, they say,
Defendant never filed such a document. (R. 119, Pls.'
Reply at 2 n.1.) But Defendant filed its CSF along with its
summary judgment response. (See R. 114.) The sanction for
failing to reply to the non-movant's statement of
additional facts “is identical to that imposed for
failing to respond: admission of the opposing party's
factual contentions.” Malec, 191 F.R.D. 584.
Accordingly, the court deems admitted the facts submitted in
Defendant's CSF, to the extent they are properly
supported by specific citations to evidence.
factual submissions are similarly problematic in several
respects. For example, Defendant twice denies Plaintiffs'
facts based on an assertion that the fact is not material
without providing any explanation, and in one response denies
an assertion about document shredding by citing a paragraph
from its CSF that has nothing to do with document shredding.
Based on these deficient responses, paragraphs 7, 9, and 17
of Plaintiffs' fact statement are deemed admitted.
See Malec, 191 F.R.D. at 584 (“If the cited
material does not clearly create a genuine dispute over the
movant's allegedly undisputed fact, the nonmovant should
provide an explanation.”). Defendant also
“denies” a number of Plaintiffs' fact
statements “based on the lack of authentication or
identification as required pursuant to . . . Rule 901 of the
Federal Rules of Evidence, ” without explaining those
assertions. (See R. 115, Def.'s Resp. to Pls.' Facts
¶¶ 21, 23-28.) According to Plaintiffs, all of the
evidence cited in support of these paragraphs are documents
that originated with and were produced in discovery by
Defendant. It is unclear then why Defendant wants Plaintiff
to authenticate documents Defendant produced
Accordingly, the fact statements set forth in paragraphs 21
and 23-28 of Plaintiffs' fact statement are deemed
to those facts that have been properly supported or deemed
admitted, the following undisputed facts will be viewed, as
they must be at this stage, in the light most favorable to
Defendant. See O'Leary v. Accretive Health,
Inc., 657 F.3d 625, 630 (7th Cir. 2011). Defendant
operates a restaurant called the Bull Dog Ale House, which is
located in New Lenox, Illinois. (R. 115, Def.'s Resp. to
Pls.' Facts ¶ 3.) Servers at the Bull Dog Ale House
are all paid a wage of $4.95 per hour, plus tips.
(Id. ¶ 4.) The servers log their hours by
clocking in and out for their shifts using software called
“Focus, ” which runs on Defendant's point of
sale (“POS”) system. (Id. ¶¶
6-7.) The POS system is installed on several computers
throughout the restaurant. (Id. ¶ 7.) When a
server clocks out at the end of a shift, the POS system
prints a close-out report which shows, among other
information, the hours the server worked, the food and drink
totals the server sold, and the credit card tips the server
collected. (Id. ¶ 8.) The servers are
responsible for entering their cash tips into the Focus
system. (R. 114, Def.'s CSF ¶ 10.) Servers are not
able to manually change their clock-in and clock-out times in
Focus. (R. 115, Def.'s Resp. to Pls.' Facts ¶
addition to the close-out report, the POS system prints a
“chit sheet” showing the time the server clocked
in and clocked out. (Id. ¶ 19.) Gabryszak saved
his chit sheets to support his allegation that Defendant
shaved time reported in the Focus system but did not produce
them in discovery. (R. 114, Def.'s CSF ¶ 14.) The
named Plaintiffs do not remember any specific dates or times
that Defendant shaved from their Focus reports. (Id.
¶ 17.) In support of their time-shaving claim,
Plaintiffs point to discrepancies between a Focus report
generated in 2017, a Focus report generated on February 21,
2019, and chit sheets produced for Opt-In Plaintiff Emily
Horn. (R. 115, Def.'s Resp. to Pls.' Facts
¶¶ 20-25.) Those documents reflect the following
discrepancies in Horn's time records:
Hours Reflected in 2017 Focus
Hours Reflected on February 21, 2019 Focus
Hours Reflected on Chit Sheets
4:45 p.m.-10:20 p.m.
4:45 p.m.-11:20 p.m.
11:58 a.m.-9:18 p.m.
11:58 a.m.-10:03 p.m.
4:39 p.m.-10:15 p.m.
4:39 p.m.-10:15 p.m.
4:39 p.m.-10:46 p.m.
12:02 p.m.-9:35 p.m.
12:02 p.m.- 11:25 p.m.
4:45 p.m.-11:54 p.m.
4:39 p.m.-1:30 a.m.
11:58 a.m.-10:08 p.m.
11:58 a.m.-11:29 p.m.
11:29 a.m.-6:10 p.m.
11:29 a.m.-7:07 p.m.
(Id. ¶¶ 21-22, 25.) Defendant also
produced a “Voids Report” (also known as a
“Time Card Audit Report”) reflecting changes to
time punches, including seven changes to Horn's hours
between August 2016 and January 2017. Two of the dates
reflecting changes in Horn's time punches correspond with
shifts reflected in the chart above: January 10, 2017, and
January 27, 2017. (Id. ¶ 26; R. 104-6,
Pls.' Facts Ex. 6 at 16.)
routinely shreds paper copies of the POS system's
close-out reports showing the servers' clock-in and
clock-out times about six to eight months after they are
generated. Defendant continued with that practice even after
this lawsuit was filed in March 2017. (R. 115, Def.'s
Resp. to Pls.' Facts ¶ 17.) Defendant admits that on
February 17, 2019, there was a data loss involving the Focus
close-out reports after the POS system was infected by a
computer virus. (Id. ¶¶ 16, 28; R. 113-1,
Def.'s Ex. 8, Souza Aff. ¶ 4.)
uses a third-party accountant to monitor its payroll reports,
which are derived from Focus, and to issue paychecks. (R.
114, Def.'s CSF ¶¶ 7-9.) The accountant audits
the tip credit to ensure that servers are paid at least
minimum wage. (Id. ¶ 9.) The accountant has
never had to make payroll ...