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Gabryszak v. Aurora Bull Dog Co.

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

December 4, 2019

DMITRI GABRYSZAK & JULIE CARLOCK, on behalf of themselves and all other similarly situated, Plaintiffs,



         Dmitri 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 law.[1] Before 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:


         As an 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.

         Here 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 facts.

         Next, 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 them.

         Plaintiffs' 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.

         Defendant's 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 itself.[2] Accordingly, the fact statements set forth in paragraphs 21 and 23-28 of Plaintiffs' fact statement are deemed admitted.

         Turning 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 ¶ 9.)

         In 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 Report

Hours Reflected on February 21, 2019 Focus Report

Hours Reflected on Chit Sheets


4:45 p.m.-10:20 p.m.

No Hours

4:45 p.m.-11:20 p.m.


11:58 a.m.-9:18 p.m.

No Hours

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.

No Hours

12:02 p.m.- 11:25 p.m.


4:45 p.m.-11:54 p.m.

No Hours

4:39 p.m.-1:30 a.m.


11:58 a.m.-10:08 p.m.

No hours

11:58 a.m.-11:29 p.m.


11:29 a.m.-6:10 p.m.

No hours

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.)

         Defendant 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.)

         Defendant 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. ΒΆ 9.) The accountant has never had to make payroll ...

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