Opinion
19 CV 1441
12-12-2022
Rosemarie C. Wiseman Plaintiff v. Santiva, Inc., d/b/a “Better Taste” and/or TASTEFULLY BETTER And/or POP BOX U.S. and/or - SANTIVA INTERNATIONAL Raymond Scott Henning as an Individual and An Employer Pursuant to the FLSA, IWPCA and IMWL Defendants
PLAINTIFF'S MOTION FOR ENTRY OF JUDGMENT AND FULL RELIEF AGAINST DEFENDANTS RAYMOND SCOTT HENNING, SANTIVA INTERNATIONAL, POP BOX U.S. AND SANTIVA INC., D/B/A BETTER TASTE
The Honorable: Susan E. Cox
NOW COME the Plaintiff, Rosemarie C. Wiseman, (“Plaintiff”), by and through her undersigned counsel of record, John C. Ireland, of the Law Office of John C. Ireland, Motions this Honorable Court for entry of Judgement and full relief on her claims, including damages determination, liquidated damages, statutory penalties, prejudgment interest and costs, and in support of this motion states as follows:
INTRODUCTION
On November 17, 2022 the Jury in this case entered a verdict in favor of the Plaintiff Rosemarie Wiseman on Plaintiff's two claims: 1) on Plaintiff's FLSA overtime claim 2) on Plaintiff's IWPCA vacation pay claim. The Jury also found that the Defendants acted willfully, extending the damages period from two years to three years from filing of this action. This court had previously found that Defendant Henning was an Employer under the FLSA and IWPCA, thus the Jury's verdict was against all Defendants.
Plaintiff now motions this Honorable Court to enter Judgment for the Plaintiff Rosemarie Wiseman and in doing so award Plaintiff the full amount of her back pay damages as determined by the Jury, as well as liquidated damages under the FLSA, IWPCA statutory penalties, prejudgment interest and costs.
PLAINTIFF SEEKS ENTRY OF A JUDGEMENT ORDER IN A SPECIFIC AMOUNT PURSUANT TO THE FLSA
While the Jury entered a finding of liability, the Jury also determined the amount of overtime hours worked by Plaintiff, but not paid. (See Verdict Form; attached to this Motion as Plaintiff's Exhibit 1). The Jury's verdict found that from February 28, 2016 to March 30, 2017 Plaintiff Rosemarie Wiseman was not paid for 450 hours of overtime and that from March 31, 2017 to January 12, 2018 Plaintiff was not paid for 200 hours of overtime. (Ex. 1). Further the parties stipulated to the following overtime rates of pay for Plaintiff: from February 28, 2016 to March 30, 2017 Plaintiff's overtime rate of pay was $30.00 per hour and for the remaining work time her rate of pay was $33.00 per hour. (See Stipulation of rates of pay; memorialized in Jury Instructions ¶ 18).
Thus Plaintiff asks the court to enter a Judgement Order, consistent with that Jury Finding, in the following specific amounts of owed wages:
March 31, 2017 to January 12, 2018 = 450 X $30 = $13,500.00
March 31, 2017 to January 12, 2018 = 200 X $33 = $6,600.00
Total $20,100.00
Thus Plaintiff asks this court to enter Judgement for the Plaintiff in the amount of $20,100.00 in FLSA damages against Defendants Raymond Scott Henning, SANTIVA INTERNATIONAL, POP BOX U.S. AND SANTIVA INC., D/B/A BETTER TASTE.
PLAINTIFF SEEKS ENTRY OF A JUDGEMENT ORDER IN A SPECIFIC AMOUNT PURSUANT TO THE IWPCA
The Jury in this cause also found, via the proper completion of the Jury verdict form, the number of hours for vacation days owed to Plaintiff, but not paid, pursuant to the IWPCA. (See Ex 1 Pg. 4). In that verdict the Jury found that Defendants liable for 24 hours of unpaid vacation pay. Further the parties stipulated to the following rate of pay for March 31, 2017 to January 12, 2018: $22.00 per hour.
Thus Plaintiff asks the court to enter a Judgement Order in the following amount:
24 vacation hours X $22.00 per hour = $528.00
Thus Plaintiff asks this court to enter a Judgement Order for the Plaintiff in the amount of $528.00 in IWPCA damages against Defendants Raymond Scott Henning, SANTIVA INTERNATIONAL, POP BOX U.S. AND SANTIVA INC., D/B/A BETTER TASTE.
PLAINTIFF ALSO SEEKS LIQUIDATED DAMAGES PURSUANT TO THE FLSA
Plaintiff also seeks liquidated damages under the FLSA. Under the FLSA, liquidated damages are mandatory unless the district court finds that the defendant-employer was acting in good faith and reasonably believed that its conduct was consistent with the law. 29 U.S.C. § 260; Shea v. Galaxie Lumber & Constr. Co., 152 F.3d 729, 733 (7th Cir. 1998). Here the evidence presented by Defendants in the trial failed to prove either good faith nor reasonable conduct, thus a Order for liduated damages is proper and correct.
Under FLSA an employer may avoid liquidated damages only if it proves that the discriminatory actions were taken in good faith, and that it had reasonable grounds for believing that the actions did not violate the FLSA. Id. (FLSA); see also Ryl-Kuchar, 564 F.Supp.2d at 829 (FMLA). Thus Defendants must prove two elements to avoid liquidated damages 1)
Defendants actions were taken in good faith AND 2) the Defendant's actions had reasonable grounds. Defendants must prove both elements and here Defendants proved neither.
Further “good faith defense” is narrowly construed, Castro v. Chicago Housing Authority, 360 F.3d 721, 730 (7th Cir. 2004), and places upon an employer a “substantial burden in showing that it acted reasonably and in good faith.” Bankston v. Illinois, 60 F.3d 1249, 1254 (7th Cir. 1995).
Defendants cannot meet these substantial burdens of proof for two key reasons: (1) the jury's findings that they acted willfully precludes a finding of good faith; and (2) at trial, Defendants failed to prove good faith nor reasonableness in Defendants actions. As such, liquidated damages should be awarded.
The Jury's Findings Of Willfulness Precludes Findings Of Good Faith
At trial, the jury was required to determine if Defendants' violations of the FLSA were willful because if Defendants' conduct were not willful, certain aspects of Plaintiff's claims would have been barred by the statute of limitations. (See Ex. 1). More specifically, for the FLSA claim, the Court explained that some of Plaintiff's overtime claims would be time-barred unless the then alleged violations were willful, thereby extending statute of limitations from two to three years.
Accordingly, the Court instructed the jury that willfulness was an essential element of Plaintiff's cause of action and held that with this instruction, a general verdict could be returned on those claims without a need for a separate special interrogatory on willfulness. (See Ex. 1)(see also jury instructions ¶ 24) . Ultimately the jury found in Plaintiff's favor on her FLSA claims and entered a specific finding that the violations were willful. (Ex. 1; Pg. 1)
With the jury findings of willfulness on the FLSA overtime claim, Plaintiff respectfully submits that the Court is precluded from finding that Defendants acted in good faith when it decides the liquidated damages question. See, e.g. Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1166 (11th Cir. 2008) (holding that where jury makes a finding of willfulness for purposes of deciding the applicable statutes of limitations, the court cannot later find the employer acted in good faith in deciding liquidated damages).
While Plaintiff was unable to find a Seventh Circuit case (though a local District Court case is cited below) on this issue, the majority of circuits have reached the same conclusion as the Eleventh Circuit reached in Alvarez Perez. See Singer v. City of Waco, Tex., 324 F.3d 813, 823 (5th Cir. 2003) (affirming liquidated damages where jury found violation of the FLSA was willful, because defendant could not show it had acted in good faith); Chao v. A-One Med. Servs., Inc., 346 F.3d 908, 920 (9th Cir. 2003) (affirming liquidated damages under FLSA where there was a finding of willfulness, and noting that “a finding of good faith is plainly inconsistent with a finding of willfulness”); Herman v. PaloGroup Foster Home, Inc., 183 F.3d 468, 474 (6th Cir. 1999) (affirming liquidated damages for violations of the FLSA because “a finding of willfulness is dispositive of the liquidated-damages issue”); Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 120 (2d Cir. 1997) (finding in an EPA case that employer acted willfully for purposes of the statute of limitations, “and the resulting compensatory award should be doubled pursuant to the Fair Labor Standards Act's liquidated damages provision” under 29 U.S.C. § 260); Brinkman v. Dep't of Corr., 21 F.3d 370, 372 (10th Cir. 1994) (determining that district court “properly awarded liquidated damages based upon the jury's finding of willfulness” because “when fact issues central to a claim are decided by a jury upon evidence that would justify its conclusion, the Seventh Amendment right to a jury trial prohibits the district court from reaching a contrary conclusion”). Here, the jury's findings of willfulness preclude a finding of good faith and on this basis alone, Plaintiff should be awarded liquidated damages.
Likewise here locally, in this District Court, Judge Manish Shah found the same preclusive effect of willfulness and good faith in Sheils v. GateHOUSEMEDIA, INC., Case No. 12 CV 2766. (NID (Shah) April 29, 2015) (Judge Shah's Order Attached as Plaintiff's Exhibit 4; for the ready reference of this court). In this finding, after reciting most of the above Court of Appeal citations, Judge Shah found:
Here, the jury's findings of willfulness preclude a finding of good faith and on this basis alone, Plaintiff should be awarded liquidated damages. (Ex. 3 Pgs. 5-6).
Thus while not tested by the 7th Circuit at this time, Judge Shah's ruling is substantial support for this court to find that Defendants are preclude from a finding of good faith based on the Jury's willfulness finding, and that liquidated damages should be awarded.
Defendants Cannot Establish That They Acted In Good Faith
Even if liquidated damages were not mandated by the findings of willfulness, Defendants cannot meet the substantial burden necessary to show their violations were in good faith and reasonable based on the evidence presented at trial, as supported by the following evidence:
• Defendant Henning testimony demonstrated his abject failure to maintain accurate records by ignoring his duty to inquire and/or understand the records that his company was creating. This was shown by his alleged ignorance of the time sheet entries for the work from home (See attached transcripts of Defendants testimony attached as Exhibit 2 and 3; Pg.24 Lns. 5-17; Pg. 26 Lns. 2-13). As a blatant example of Defendants claims and attempts at willful blindness, Mr. Henning ignored the entry for “plus three hours” and claimed that he had no idea what that time sheet entry meant. (Pg. 27 Lns. 12-14; Lns. 22-23; Pg. 83 Lns. 7-9). Further the +3 was based on the full six hours found on the top
of the sheet, again no inquiry made by Defendants to understand, or create accurate records. (Pg. 28 Lns.1-17).
o This willful blindness demonstrates a lack of reasonableness, as any reasonable employer that received a time sheet with an unknown entry (if the court believes Mr. Henning that he did not know what the 3+ entry meant) would have inquired, clarified and paid the hours reported but not included in the totals. But Mr. Henning did not make that inquiry (nor payment), not during the Plaintiff's employment, not during the IDOL hearings, nor any time prior to rendering of a verdict.
• Mr. Henning understood that Plaintiff was working from home, yet made no inquiry if Plaintiff was paid fully. (Pg. 29 Lns. 7-25). Rather than inquire, as a reasonable employer would, even at trial on this matter, he sought to blame the victim. (Pg. 29 Ln. 25).
• Mr. Henning also completely failed to pay the amount specifically communicated by Plaintiff: Plaintiff stated in a text a report of “86.5” hours (Pg. 31 Lns. 12-25) and Defendants paid 86.0 hours. (Pg. 32 Lns. 2-5). Defendants' failed to pay the amount reported, while pleading to the Jury, “we paid all hours”, this is neither reasonable nor in good faith. Defendants also had the temerity to claim “if there is an error I correct it”, (Pg. 33 Lns. 3-5),
o yet Defendants never fixed the underpayment of 0.5 nor the difference from reported 91.5 and 85 paid.
• Defendant also repeatedly blamed his alleged lack of access to the Excel time sheets, (Pg. 34 Lns. 5-6) (which he testified he had access to, had he wanted to), but also agreed that during the litigation he did have free access, and did nothing about the blatant shortages. (Pg. 36 Lns. 20-25; Pg. 37 Lns. 1-13). Further when asked by his own counsel, he admitted knowing that the hours were on an Excel sheet, (Pg. 81 Lns. 23-24),
o thus when faced with the claims, Defendants could have reviewed and determined wages owed, but Defendants did not do that at any time, including during the trial.
• Mr. Henning also claimed ignorance of Plaintiff working nights and weekends which was shown by email and text communications. (Pgs. 57-60). Such claims of ignorance are highly suspect, as shown by his impeachment on several issues, such as claims that he “paid all reported hours” was shown as untrue. This uncredible claim of ignorance of homework, (from emails sent at 3:00 AM on a weekend) is further shown to be false as Mr. Henning claimed repeatedly to have an alleged “no overtime/ no home work” policy, yet not once did he seek to enforce that policy in response to clear work from home. (Pgs. 61-62). Further, when Defendant counsel asked about his claim of ignoring the time and date of the emails, Defendants testified that he only looked at the “substance” of the emails (Pg. 101 Ln. 4) yet when Plaintiff emailed on a Saturday morning at 1000 AM and complained in the “substance” of the email that she had worked from 100 AM to 1004 AM, nine hours and had added 400 listing working hours and hours at home, Defendants again did nothing but sit back and enjoy the free work done by Plaintiff. (Pg. 130-131)
• Defendant Henning also claimed repeatedly that he always “paid the hours on the time sheet” or “paid all overtime reported”, (Pg. 9 Lns. 16-17; Pg. 13 Ln. 12), this was demonstrated as simply untrue, as shown by the blatant failure to pay the hours on the time sheets. (Pg. 16 Lns 10-11).
o Even after litigation on this issue since 2018 at the IDOL and federal litigation since 1019, for four years of review and consideration, Defendants failed to note this simple truth, that they failed to pay “all overtime”, while bragging they had.
• Mr. Henning also failed to even agree to what any reasonable person would see and understand. In regards to the clear payment of some of Cary Wiseman's owed wages, he claimed his hand written notes, on his own business records, were doodles or “notes all over the place”, but not payments to Cary, as clearly shown on the records. (Pg. p Lns. 16). This additionally was an indication of his lack of proper record keeping, as he could not name what the extra 19 hours of wages were paid for other than a vague claim of an “error”. (Pgs. 5-9).
• Defendants attempts at blame were placed on some unnamed “error” was also used to seek excuse from the underpayment of 85 hours on 91.5 hours reported. (Pg. 17 Lns. 2-4; Pg. 124 Lns. 1-3). The same error was not corrected, at any time during Plaintiff's employment, during the IDOL case, nor any time in this litigation. (Pgs. 20 and 22) and this despite four years of litigation and review of the time sheets. (Pg. 20 Ln. 20) despite doing all the accounting, Defendants had no clue the amount owed. (Pg. 21 Lns. 1-5). Mr. Henning simply did not bother, after four years of litigation to add the numbers up to verify if he paid all the wages correctly. (Pg. 21 Lns. 1-5).
• Mr. Henning also blamed no one because he “Don't know whose fault it is” (Pg. 38 Lns. 23-24) or maybe it's the fault of the payroll company: “That's what I pay them for”. (Pg. 40 Lns 7-9; Pg. 124 Lns. 8-9). This blame game was in response to Defendants blatant failure to pay overtime hours at an overtime rate of pay, (Pg. 40 Lns. 10-19; Pg. 41 Lns. 8-10; Pg. 44 Lns. 13-16; Pgs. 47-48). When asked when these hours of half time were repaid, (after four years of litigation) Defendants testified he “Don't recall”. (Pg. 41 Lns.12-14) and “I have no recollection one way or the other”. (Pg. 44 Lns. 18-20) and I “Have no recollection” (Pg. 48 Ln. 9).
o This is a blatant disregard for duty to pay properly, and a complete lack of remorse and/or effort to mitigate the blatant FLSA violation. Had Defendants shown an accounting, where these repeated blatant errors were corrected, at any time, Defendants might have an argument that they fixed those errors, yet the final evidence presented by Mr. Henning is a limp “don't know” excuse.
• Further Mr. Henning is not some ‘babe in the woods', he began his first company at 25 years of age. (Pg. 68 Ln. 19), thus he has had or operated business for dozens of years, and yet he allowed merging of payrolls? He allowed or caused the failure to pay overtime
wages at overtime rate? He caused the failure to pay all reported time (while boasting of “paying all hours reported”).
o The fact that Mr. Henning is not a novice or newbie starting his first firm makes his blatant FLSA violations all the worse.
• While Defendants' counsel finally got Mr. Henning to admit some mistakes (Pg. 79 Lns. 8-11) but after finally admitting mistakes he could not accept any responsibility, rather his only unmoving excuse is to again seek to blame the victim (Plaintiff) for not making a demand for the unpaid wages. (Pg. 79 Lns. 23-25).
o This itself again shows a lack of reasonableness, had Mr. Henning fixed those admitted (and blatant) errors during the Plaintiff's employment, or during the IDOL hearings, or during the federal litigation or even on the trial date of November 16, 2022, there might be some support for good faith, but rather than doing that Mr. Henning sought to blame of the Plaintiff. (Pg. 79 Lns. 23-25).
• When asked about the blatant failure to pay (or even inquire) about the 3+ hours, (Pg. 83 Lns. 7-9), again Counsel sought to bolster the defense of “blame the victim” (Pg. 83 Lns. 10-14).
• Mr. Hennings also admitted that Plaintiff asked for half of her hours worked from home (Pg. 80 Lns. 5-12), yet his odd response was Plaintiff was to submit all her hours. (Id.).
o This is non-sensical given the evidence, had Defendants offered to pay all the hours, as Defendants now claim, why would Plaintiff have made the detailed and elaborate notes about working from home, and halving those time entries?
o Why, because Mr. Henning was lying when he claimed he offered to pay for all the hours. Otherwise Plaintiff would have been halving her hours despite the promise to pay all the hours. That means in 2017, Plaintiff knew she was going to sue the Defendants (for half of her hours), and add all those elaborate notes to lay a trap for Defendants, rather than simply putting down all her hours.
• This blame-game strategy was further supported by Defendants claim that Plaintiff could easily ask for help or assistance, “.. .the cinnamon should be on the first shelf' (Pg. 90 Ln. 6), and that “just turn and talk to her” (Pg. 99 Lns. 9-12)
o but this ease of communications further illustrates the Defendants dilatory actions, because if Plaintiff could easily ask about the cinnamon and was ten feet away, Defendants could likewise easily ask about the more serious issue of “3 plus' or failure to pay half time, or paying 85.0 hours on a report of 91.5. Yet Defendants did not do that, and appeared to believe that blaming the Plaintiff was sufficient to avoid their FLSA duties.
• Defendants blame-game also was cloaked in testimony about “trust' of the Plaintiff's time keeping (Pg. 98). This type of blame again is not consistent with the duty of the employer to do its job, making sure records are correct and payments made in full.
o This is an attempt to put that duty (and blame) on Plaintiff, which the Jury did not buy as they found Plaintiff was owed $20,100.00.
• Defendants also attempted to mitigate the paying two employees on one check, by claiming it only occurred for about two months, (Pg. 101 Lns. 14-20), yet again Defendants were tripped up by the truth, as the actual time that the payrolls were combined was actually from February to October 13. (Pg. 126-129).
All the above are Defendants admissions, actions and inactions that show Defendants utter lack of reasonableness in action and/or lack of good faith in fulfillment of Defendants' FLSA duties.
The good faith defense cannot be established merely by professed ignorance of the FLSA, and requires that the employer met a duty to at least investigate potential liability. Barcellona v. Tiffany English Pub, Inc., 597 F.2d 464, 468-69 (5th Cir. 1979). While not directly citing ignorance, Defendants seek shelter from liquidated damages by claiming to be a small company or too busy to bother or by blaming the Plaintiff for their FLSA violations.
But Barcellona does not allow for an employer to prove good faith on those bases, rather Defendants are required to “at least investigate” if their actions were legal under the FLSA. Defendants did not conduct any such investigation ever, including after the IDOL was filed and after the federal case was filed and even as the case was tried before this court. Defendants did not present an accounting, did not present any mitigation efforts, nor any demonstration that they paid wages properly.
Further Defendants professed that they thought they complied is not sufficient. This belief is not sufficient since knowledge of the Act and its obligations is imputed. See Reeves v. International Telephone & Telegraph Corp. (5th Cir.1980), 616 F.2d 1342, 1353, cert. denied (1981), 449 U.S. 1077, 66 L.Ed.2d 800, 101 S.Ct. 857.
Defendants' abject failures to keep proper records, such as allowing “unknown” time entries to be undocumented, further disprove the good faith defense. In Dunlop v. Gray-Goto,Inc. (10th Cir.1976), 528 F.2d 792, 796, the court indicated that the employer cannot rely on a good-faith defense when it fails to meet the record-keeping requirements of the Act. (See also Hodgson v. Elm Hill Meats of Kentucky, Inc. (E.D. Ky. 1971), 327 F.Supp. 1009, 1014, aff'd (6th Cir.1972), 463 F.2d 1186; Walling v. Stone (7th Cir.1942), 131 F.2d 461, 463.). Here the Defendant professed that the records included “doodles” and random notes that were unknown, despite being authored by Defendants themselves.
Defendants attempts to blame the Plaintiff for their FLSA errors does not excuse the Defendants nor prove good faith. As the Fifth Circuit found in LeCompte v. Chrysler CreditCorp., 780 F.2d 1260, 1263 (5th Cir. 1986), "an employer cannot satisfy its dual burden under § 260 solely by suggesting that lower-level employees are responsible for the violations..” thus Defendants repeated finger pointing to the Plaintiff is not proof of good faith, rather is the opposite.
In LeCompte the court also found that claiming ignorance was not proof of good faith finding “From such incidents, Heacock knew, or in the exercise of reasonable diligence should have known, that considerable overtime work was being required of accounts adjusters.” (at 1263). Mr. Henning likewise could easily have found (if the court believes the claims of ignorance) that Plaintiff was working the 650 hours awarded by the Jury; simply by looking at his own emails, text messages, and Plaintiff's work product of 400+ listing.
“To prove that it acted in good faith, an employer ‘must show that [it] took affirmative steps to ascertain the Act's requirements, but nonetheless violated its provisions “Martin v. Indiana Michigan Power Co., 381 F.3d 574, 584 (6th Cir. 2004). Here Mr. Henning presented zero evidence of efforts to understand the FLSA, rather evidence supports a finding that he actively avoided such knowledge.
Plaintiff also notes that this defense has a burden of proof that required Defendants, not Plaintiffs to prove this defense. “However, it is not Plaintiffs' responsibility to prove bad faith. Rather, it is Defendants' responsibility to prove good faith” Jordan v. IBP, Inc., 542 F.Supp.2d 790, 815-16 (M.D. Tenn. 2008). Because Defendants bear the burden, Defendants must demonstrate they took affirmative steps to comply with the FLSA, here Mr. Henning presented nothing to show any efforts; much less “affirmative steps”.
"To establish the requisite subjective 'good faith,' an employer must show that it took active steps to ascertain the dictates of the FLSA and then act[ed] to comply with them." Barfieldv. New York City Health & Hosps. Corp., 537 F.3d 132, 150 (2d Cir. 2008) (internal quotation marks and citation omitted). See also Addison v. Huron Stevedoring Corp., 204 F.2d 88, 93 (2d Cir. 1953) ("The 'good faith' of the statute requires, we think, only an honest intention to ascertain what the [FLSA] requires and to act in accordance with it."); Beebe v. United States, 640 F.2d 1283, 1295 (Ct. Cl. 1981). Here Mr. Henning took no steps, no actions, no efforts to understand his duties under the FLSA.
As for the amount of liquidated damages, that is determined by first calculating the unpaid overtime compensation. An employer who violates the overtime provisions of the FLSA shall be liable to the employee affected in the amount of her unpaid overtime compensation and in an additional equal amount as liquidated damages. 29 USCS § 216. As noted above, total FLSA damages are $20,100.00 (see above and Jury verdict form).
Accordingly, Plaintiff respectfully requests entry of judgment in the amount of $20,100.00 for the unpaid overtime and an additional $20,100.00 as liquidated damages, for a total of $40,2050.00 on her FLSA claim. See also Shea, 152 F.3d at 733 (noting that there is a “strong presumption” in favor of doubling); Bankston, 60 F.3d at 1254. (“Doubling is the norm, not the exception”)
PLAINTIFF SEEKS IWPCA PENALTIES
Plaintiff also seeks an entry of a Judgement pursuant to IWPCA in the amount of $528.00 (See Ex. 1 and see argument/calculations above). The IWCPA also has mandated penalties for failures to pay IWPCA wages. The IWPCA has mandated 2% interest per month on underpayments, which was increased to 5% per month until paid (820 ILCS 115/14). The effective date of the increase to 5% was July 9, 2021. (Id.).
Thus Plaintiff calculates the IPWCA penalties periods as follows
February 2018 to July 2021 = 41 months (3 years + 5 months = 41 months)
August 2021 to December 2022 = 16 months (1 year + 4 months = 16 months)
Thus the respective IWPCA penalties are calculated as follows:
$528.00 X 2% = $10.56 per month X 41 months = $432.96
$528.00 X 5% = $26.40 per month X 16 months = $422.40
Total $855.36
Thus Plaintiff asks this court to enter a Judgement Order for the Plaintiff in the amount of $855.36 in IWPCA penalties/damages against Defendants Raymond Scott Henning, SANTIVA INTERNATIONAL, POP BOX U.S. AND SANTIVA INC., D/B/A BETTER TASTE.
PLAINTIFF SEEKS PREJUDGMENT INTEREST
More than four years have passed since Plaintiff's overtime hours were unpaid. Her equitable damages award should include an award of pre-judgment interest.
An award of prejudgment interest lies within the discretion of the trial court in cases based upon the FLSA. Donnelly v. Yellow Freight System, Inc., 874 F.2d 402, 411 (7th Cir.1989). "The purpose of prejudgment interest is to compensate plaintiffs for the lost time value of money." Rowe v. Maremont Corp., 850 F.2d 1226, 1243 (7th Cir.1988). "Many of the appellate courts to consider the issue have held that pre-judgment interest (in FLSA cases) is mandatory ... or presumed to be appropriate." Brock v. Richardson, 812 F.2d 121, 126 (3rd Cir.1987). See, also, Coston v. Plitt Theatres, Inc., 831 F.2d 1321, 1335-37 (7th Cir.1987), cert. denied, __ U.S. __, 108 S.Ct. 1471, 99 L.Ed.2d 700 (1988); E.E.O.C. v. O'Grady, 857 F.2d 383, 391-92 (7th Cir.1988); Kossman v. Calumet County, 800 F.2d 697, 702-03 (7th Cir.1986); cert. denied, 479 U.S. 1088, 107 S.Ct. 1294, 94 L.Ed.2d 151 (1987).
In Lomas v. Kold-Lena Cheese 720 F.Supp. 110 (NID 1989) the court awarded prejudgement interest “The court believes prejudgment interest is appropriate in this case. Such an award serves to compensate Plaintiff for the delay in receiving his overtime and Sunday wages during the relevant time period.” Likewise here Plaintiff has waited since 2016 to receive Judgment for her overtime, and Plaintiff asks for prejudgment interest from January of 2018 to present. $20,100.00 X 5% = $1005.00 X 4.5 years = $4,522.50
Costs
In addition to the damages set forth above, Plaintiff seeks costs for prevailing on her overtime and vacation claims. Plaintiff also seeks costs for prevailing on her overtime and vacation claims. The FLSA directs courts to award reasonable costs to prevailing parties. See 29 U.S.C. § 216(b) (“The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.”); Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 550 (7th Cir. 1999).
Conclusion
Based on the foregoing, Plaintiff respectfully requests this Court enter judgment in Plaintiff's favor and award Plaintiff the following relief consistent with the jury's verdict and case law: unpaid overtime compensation in the amount of $20,100.00; prejudgment interest in the amount of
$4,522.50; liquidated damages in the amount of $20,100.00; IWPCA Judgment $528.00, IWPCA
penalties in the amount of 855.36. Plaintiff also respectfully requests leave to file a bill of costs as determined by Federal Rule of Civil Procedure 54(d)(1) and Local Rule 54.1.
Dated: December 12, 2022
WHEREFORE, Plaintiffs Motion this Honorable Court to Extend the discovery schedule to close discovery on or before June 23, 2020.
Respectfully submitted
PLAINTIFF'S MOTION FOR ENTRY OF JUDGMENT AND FULL RELIEF AGAINST DEFENDANTS RAYMOND SCOTT HENNING, SANTIVA INTERNATIONAL, POP BOX U.S. AND SANTIVA INC., D/B/A BETTER TASTE
Plaintiff's Exhibit 4
DARLENE SHEILS, Plaintiff, v.
GATEHOUSE MEDIA, INC., GATEHOUSE MEDIA SUBURBAN NEWSPAPERS, INC., and SHAW SUBURBAN MEDIA GROUP, INC., Defendants.
Case No. 12 CV 2766.
United States District Court, N.D. Illinois, Eastern Division.
April 29, 2015.
PLAINTIFF'S MOTION FOR ENTRY OF JUDGMENT AND FULL RELIEF
MANISH S. SHAH, Judge.
Plaintiff, Darlene Sheils, by her attorneys, Pedersen & Weinstein LLP, respectfully submits this motion for entry of judgment and asks that she be awarded full relief on her claims, including back pay, prejudgment interest, liquidated damages, statutory penalties, reinstatement or front pay, award for adverse tax consequences, emotional distress damages, punitive damages, attorneys' fees and costs.
I. Introduction
On March 27, 2015, a jury returned a verdict on liability in Plaintiff's favor on the following four (4) claims: (a) Plaintiff's claim of FMLA retaliation with respect to her demotion (Claim 2); (b) Plaintiff's claim of FMLA retaliation with respect to her discharge (Claim 3); (c) Plaintiff's claim for unpaid overtime (Claim 4); and (d) Plaintiff's claim of retaliatory discharge under Illinois law (Claim 5). The jury also found in Plaintiffs favor on the issue of joint employer liability, finding that Gate House Media, Inc. was a joint employer of Plaintiff with GateHouse Media Suburban Newspapers, Inc.
The jury found in favor of Defendants on one claim, Plaintiff's FMLA interference claim (Claim 1).
Following the liability phase of trial, the parties presented evidence on Plaintiff's damages and on March 30, 2015, the jury returned a verdict awarding Plaintiff the following:
Claim 2 - Back pay (FMLA demotion): $3,637
Claims 3 and 5 - Back pay (FMLA discharge, retaliatory discharge): $62,036.01
Claim 5 - Emotional distress damages: $60,000
Claim 5 - Punitive damages: $125,000
Additionally, the jury concluded that Defendants' violation of the Fair Labor Standards Act ("FLSA") was willful, and for 2010 found that Plaintiff worked 37.5 hours of overtime. Plaintiff now moves the Court to enter judgment awarding Plaintiff the full amount of her back pay, emotional distress damages and punitive damages as determined by the jury, as well as prejudgment interest, liquidated damages under the FMLA and FLSA, the statutory penalty for unpaid wages under the Illinois Minimum Wage Law, an award for the adverse tax consequences on her back pay, plus attorneys' fees as determined by Federal Rule of Civil Procedure 54(d)(2) and Local Rule 54.3 and costs as determined by Federal Rule 54(d)(1) and Local Rule 54.1.
II. FMLA And Retaliatory Discharge Claims - Back Pay And Prejudgment Interest
Under the FMLA, Defendants are liable for damages equal to "(i) the amount of [] any wages, salary, employment benefits, or other compensation denied or lost ...; (ii) the interest on the amount described in clause (i) calculated at the prevailing rate; and (iii) an additional amount as liquidated damages equal to the sum of the amount described in clause (i) and the interest described in clause (ii) ..." 29 USCS § 2617(1)(A)(i)-(iii). Back pay is also a well-established remedy for a retaliatory discharge claim under Illinois law. See, e.g.Reinneck v. Taco Bell Corp., 297 Ill.App.3d 211 (Ill.App.Ct. 5th Dist. 1998)(awarding $370,000 back pay and future pay).
Back Pay. As this Court held in its March 11, 2015 Order, back pay under the FMLA is an issue to be decided by the jury. (Doc. 88)(citing Frizzell v. S.W. Motor Freight, 154 F.3d 641, 642-644 (6th Cir. 1998). Likewise, back pay is a jury issue under Illinois retaliatory discharge law. (Doc. 88)(citing Holland v. Schwan's Home Serv.,Inc., 2013 Il App (5th) 110560 ¶207 (5th Dist. 2012); Kritzen v. Flender Corp., 226 Ill.App.3d (2d Dist. 1992)). After finding in favor of Plaintiff on her FMLA retaliation and Illinois retaliatory discharge claims (Claims 2, 3 and 5), the jury awarded Plaintiff back pay in the total amount of $65,673.01 ($3,637 for the demotion in Claim 2 + $62,036.01 for the termination in Claims 3 and 5). Accordingly, Plaintiff should be awarded back pay in the amount of $65,673.01.
Prejudgment Interest. Pursuant to 29 USCS § 2617(1)(A)(ii), Plaintiff seeks interest on the back pay award, which is also presumed to be appropriate under the FMLA. SeeU.S. v. Bd. of Educ.of Consol. High Sch. Dist. 230, Palos Hills, Ill., 983 F.2d 790, 799 (7th Cir. 1993) (Prejudgment interest is "presumptively available" because "[w]ithout it, compensation is incomplete and the defendant has an incentive to delay.") Because prejudgment interest is an element of complete compensation, "compound prejudgment interest is the norm in federal litigation." Am. Nat'lFireIns. Co. v. Yellow Freight Sys. Inc., 325 F.3d 924, 937-38 (7th Cir. 2003); see also Gorenstein Enters., Inc. v. Quality Care U.S.A., Inc., 874 F.2d 431, 436 (7th Cir. 1989)(compound, rather than simple, interest is proper).
Further, back pay interest should be calculated by compounding monthly the prime rate set by the Federal Reserve during the month in which interest is sought. SeeRyl-Kuchar v. CareCenters, Inc., 564 F.Supp.2d 817, 829 (N.D. Ill. 2008) affd, 565 F.3d 1027 (7th Cir. 2009) (basing calculations on the monthly prime rate set by the Federal Reserve during months for which plaintiff seeks interest was acceptable); see also Rasic v. City of Northlake, 2010 U.S. Dist. LEXIS 86815 at * 35 (N.D. Ill. Aug. 24, 2010)(Schenkier, Mag.)("we agree with plaintiff that the compounding should be done on a monthly, and not an annual, basis"). In Rasic, the court explained that where a claim is made for ongoing lost wages, prior to judgment, the amount of lost wages increases with every missed pay check. In that situation, the court held compounding interest on a monthly basis is a more accurate way to fully compensate a plaintiff for the time value of an increasing amount of lost wages. Id. at *36.
As the courts in Ryl-Kuchar and Rasic held, prejudgment interest in this case should be compounded monthly at the prevailing prime rate starting on February 17, 2011 (the day Defendants fired Plaintiff) and continuing through the date judgment is entered against Defendants. Because the Court has not yet entered judgment in this case, Plaintiff is submitting a spreadsheet detailing her calculation of prejudgment interest through April 17, 2015 (see Exhibit A, attached), which is $9,509.72. Plaintiff will supplement this calculation as appropriate once judgment is entered. Plaintiff also seeks post-judgment interest, for which Defendants are also liable following the entry of judgment, as provided by 28 U.S.C. § 1961. Alcazar-Anselmo v. City of Chicago, 2011 U.S. Dist. LEXIS 82291 at *15 (N.D. Ill. July 27, 2011). Post-judgment interest is calculated as described in the statute.
Plaintiff calculated prejudgment interest at the prevailing prime rate of 3.25%. SeeFirst Nat'l Bank of Chicago v.Standard Bank & Trust, 172 F.3d 472, 480 (7th Cir. 1999) ("Our practice has been to use the prime rate as the benchmark for prejudgment interest unless either there is a statutorily defined rate or the district court engages in 'refined rate-setting' directed at determining a more accurate market rate for interest."); www.federalreserve.gov/releases/h15 (prime rate from February 17, 2011 until the present is 3.25%).
III. FMLA And FLSA Claims - Liquidated Damages
Plaintiff seeks liquidated damages under the FMLA and FLSA. The liquidated damages provisions of the FMLA and FLSA are identical and courts treat the case law under the statutes interchangeably. Ulit v. Advocate S. Suburban Hosp., 2009 U.S. Dist. LEXIS 118587 at *3 fn 1 (N.D. Ill.Dec. 21, 2009)(Dow, J.). Accordingly, Plaintiff addresses liquidated damages under both statutes in this section.
A. Legal Standard
The FMLA provides that an employer who violates the FMLA shall be liable not only for lost wages and interest, but also for "liquidated damages equal to the sum of the amount" of lost wages plus interest. 29 U.S.C. § 2617(a)(1)(A)(iii)(emphasis added). Likewise, under the FLSA, liquidated damages are mandatory unless the district court finds that the defendant-employer was acting in good faith and reasonably believed that its conduct was consistent with the law. 29 U.S.C. § 260; Shea v. Galaxie Lumber & Constr. Co., 152 F.3d 729, 733 (7th Cir. 1998).
Under both statutes, an employer may avoid liquidated damages only if it proves that the discriminatory actions were taken in good faith, and that it had reasonable grounds for believing that the actions did not violate the FLSA or FMLA. Id. (FLSA); Ryl-Kuchar, 564 F.Supp.2d at 829 (FMLA). This "good faith defense" is narrowly construed, Castro v. Chicago HousingAuthority, 360 F.3d 721, 730 (7th Cir. 2004), and places upon an employer a "substantial burden in showing that it acted reasonably and in good faith." Bankston v. Illinois, 60 F.3d 1249, 1254 (7th Cir. 1995). Defendants cannot meet this substantial burden for two key reasons: (1) the jury's findings that they acted willfully precludes a finding of good faith; and (2) at trial, Defendants failed to prove good faith. As such, liquidated damages should be awarded.
B. The Jury's Findings Of Willfulness Preclude Findings Of Good Faith
At trial, the jury was required to determine if Defendants' violations of the FMLA and FLSA were willful because if Defendants' conduct was not willful, certain aspects of Plaintiff's claims would have been barred by the statute of limitations. More specifically, for the FMLA claim, the Court explained in its March 11, 2015 Order that Plaintiff's claims based on her demotion would be time-barred unless the alleged violations were willful, thereby extending the statute of limitations from two to three years. Accordingly, the Court instructed the jury that willfulness was an essential element of Plaintiff's cause of action and held that with this instruction, a general verdict could be returned on those claims without a need for a separate special interrogatory on willfulness. See Jury Instructions, Doc. 100, p. 20; March 11, 2015 Order, Doc. 88, p. 1. Ultimately the jury found in Plaintiff's favor on her FMLA-Retaliation-Demotion claim, meaning the jury found that Defendants' violation of the FMLA was willful.
Similarly, with respect to Plaintiff's FLSA claim, the Court held that where willfulness affects the applicable statute of limitations as it did in this case, the inquiry is to be resolved by the jury. March 11, 2015 Order, Doc. 88, p. 2 (citing Bankston, 60 F.3d at 1253). Accordingly, during the damages portion of the trial, the jury was required to determine whether Defendants' violation of the FLSA was willful and the jury returned a verdict concluding that it was.
With jury findings of willfulness on both of these claims, Plaintiff respectfully submits that the Court is precluded from finding that Defendants acted in good faith when it decides the liquidated damages question. See, e.g.Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1166 (11th Cir. 2008) (holding that where jury makes a finding of willfulness for purposes of deciding the applicable statutes of limitations, the court cannot later find the employer acted in good faith in deciding liquidated damages). While Plaintiff was unable to find a Seventh Circuit case on this issue, the majority of circuits have reached the same conclusion as the Eleventh Circuit reached in Alvarez Perez. See Singer v. City of Waco, Tex., 324 F.3d 813, 823 (5th Cir. 2003) (affirming liquidated damages where jury found violation of the FLSA was willful, because defendant could not show it had acted in good faith); Chao v. A-One Med. Servs., Inc., 346 F.3d 908, 920 (9th Cir. 2003) (affirming liquidated damages under FLSA where there was a finding of willfulness, and noting that "a finding of good faith is plainly inconsistent with a finding of willfulness"); Herman v. PaloGroup Foster Home, Inc., 183 F.3d 468, 474 (6th Cir. 1999) (affirming liquidated damages for violations of the FLSA because "a finding of willfulness is dispositive of the liquidated-damages issue"); Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 120 (2d Cir. 1997) (finding in an EPA case that employer acted willfully for purposes of the statute of limitations, "and the resulting compensatory award should be doubled pursuant to the Fair Labor Standards Act's liquidated damages provision" under 29 U.S.C. § 260); Brinkman v. Dep't of Corr., 21 F.3d 370, 372 (10th Cir. 1994) (determining that district court "properly awarded liquidated damages based upon the jury's finding of willfulness" because "when fact issues central to a claim are decided by a jury upon evidence that would justify its conclusion, the Seventh Amendment right to a jury trial prohibits the district court from reaching a contrary conclusion"). Here, the jury's findings of willfulness preclude a finding of good faith and on this basis alone, Plaintiff should be awarded liquidated damages.
C. Defendants Cannot Establish That They Acted In Good Faith
Even if liquidated damages were not mandated by the findings of willfulness, Defendants cannot meet the substantial burden necessary to show their violations were in good faith.
1. FMLA Claims
On Plaintiff's FMLA claims, Defendants cannot establish that they acted in good faith and reasonably believed that their conduct was consistent with the law. The evidence in this regard with respect to Plaintiff's demotion and pay cut (Claim 2) includes the following:
• Defendants knew that the FMLA provided job protection to employees on approved FMLA leave, yet they failed to return Plaintiff to her position or an equivalent position after her FMLA leaves in 2009 and 2010.
• The suspicious timing of the adverse actions against Plaintiff - more specifically, after years of performing well for Defendants, and on the heels of Plaintiff requesting and taking FMLA leaves, Defendants demoted her and cut her pay.
• Defendants attempted to justify demoting Plaintiff and cutting her pay from $48,000 per year to $20 per hour by claiming she was no longer a supervisor, but as she and Maggie Grover testified, and as the job descriptions for Plaintiff before and after the demotion showed, nothing about Plaintiff's job actually changed. She was doing the same job but for less pay.
• Defendants claimed at trial that everyone in Plaintiff's department had their hours cut from 40 hours per week to 37.5 to create the appearance that everyone was negatively impacted at the same time Plaintiff was demoted. Contrary to Defendants' claim, however, Sue Krish, who had never taken FMLA leave and who ultimately got one of the jobs for which Plaintiff applied, testified that her hours were not cut and she continued to work 40 hours per week.
• Even if other employees in Plaintiff's department had a slight reduction in their hours and pay, the evidence showed that Plaintiff's pay was cut twice as much as anyone else in the department (none of whom had taken FMLA leave) with no credible justification.
• Carol Gilbert, Plaintiff's direct supervisor and one of the decision makers on the demotion, made repeated negative comments to Plaintiff about taking FMLA leave before each leave preceding her demotion. Gilbert was worried about deadlines and questioned how all of the work would get done when Plaintiff was out for her surgeries.
• Similarly, Maggie Grover testified that in 2009 when Plaintiff needed surgery in the middle of a very busy time at the paper, Gilbert was annoyed that Plaintiff had to take time off, asked Plaintiff if she had to be gone so long and if she could come back earlier.
• On another occasion, Maggie Grover heard Gilbert question Plaintiff about a medical appointment saying, "Does it have to be now" and "can't you get another appointment?"
• Maggie Grover also testified that several other times she heard Gilbert question Plaintiff about her need to take time off at all and about the length of the leave.
• Additionally, Maggie Grover testified that Gilbert said she thought that Plaintiff was overblowing the pain and indicated that she did not think it was as bad as Plaintiff was making it out to be.
• Maggie Grover further testified that during a conversation about assigning work to other employees in Plaintiff's absence, Gilbert said that Plaintiff's FMLA leave "should not take that long" and appeared unhappy.
• After Plaintiff's surgeries and FMLA leaves, Gilbert began ignoring and distancing herself from Plaintiff. Gilbert told Plaintiff not to sit in her office anymore even when they discussed work, yet Plaintiff still saw other employees sitting and talking with Gilbert - the new "rule" about not sitting in Gilbert's office only applied to Plaintiff.
As for Plaintiff's termination, in addition to the evidence summarized above which includes Defendants' knowledge of the law, the repeated negative comments to and about Plaintiff taking FMLA leaves and the false explanations for demoting her and cutting her pay, Defendants cannot establish that they acted in good faith and reasonably believed that their conduct was consistent with the law in light of the following evidence:
• Defendants' Vice President of Human Resources testified that it would violate the FMLA to use an employee's FMLA leave as a negative factor in making an employment decision, yet Gilbert admitted that this was exactly what she did. Specifically, when Gilbert ranked Plaintiff's attendance, which was part of a chart that Defendants relied on heavily when deciding to fire Plaintiff, she took into consideration Plaintiff's FMLA time.
• Further, in unlawfully taking Plaintiff's FMLA leave into account, Gilbert ranked Plaintiff the lowest of any other employee in the department on attendance.
• Moreover, in looking at the total number of hours that employees took off before Gilbert did her rankings (specifically from Plaintiff's return from her second FMLA leave until the time Gilbert did her rankings), Plaintiff actually had fewer hours off than all but two other employees (1 of whom had the same number of hours off and 1 who appeared to have no time off at all, including holidays). However, Gilbert still rated Plaintiff a 2 (the lowest of any other employee in the department) and rated everyone else (including those with the same or more time off than Plaintiff) a 4 or 5.
• Gilbert's unlawful consideration of Plaintiff's FMLA leave adversely affected the other areas Gilbert ranked Plaintiff on for purposes of deciding who to retain following the department's reorganization. Despite Gilbert's equivocation and attempt at trial to distinguish "hypothetical criteria and rankings" from the actual criteria and rankings used to fire Plaintiff, Gilbert clearly testified at her deposition that attendance, in her view, would affect 6 additional criteria she ranked employees on, including Plaintiff.
• Had these 7 rankings, all of which Gilbert admitted were her own subjective opinions, not been affected by her unlawfully taking into account Plaintiff's FMLA leaves, Plaintiff would have scored as high as Sue Krish and Lynn Adamo who got the jobs instead of Plaintiff.
• Defendants argued that Gilbert considered a greater period of time than was reflected on the summary chart used at trial, but even if she went back further to some undefined time, it would not have changed anything because Gilbert admitted that she still would have taken into account Plaintiff's other FMLA leaves, which again, is illegal.
• Defendants claimed they hired the most qualified people following the reorganization (none of whom had taken FMLA leave), yet they gave one of the jobs Plaintiff applied for (that of senior production coordinator), a job that required attention to detail, to the candidate with an obvious typo on her resume and who wrote on her application that she needed training on 30% of the essential job functions for the position.
• Defendants claimed that Plaintiff did not get the other position she applied for (ad traffic coordinator) because there was only one such position and it went to Sue Krisch, yet at the same time Defendants ran an advertisement seeking candidates for the exact same job.
• Thereafter, within two months after telling Plaintiff that there were no ad traffic coordinator positions for her, Defendants hired two more people for the job, including an outside applicant. Within a year, Defendants hired 6 more ad traffic coordinators.
• Defendants repeatedly claimed at trial that all graphic design work (Plaintiff's work) was outsourced to India, that there was no graphic design work left here, and that no one working for Defendants built ads anymore. Yet, as recently as two weeks before trial, Defendants were recruiting for ad traffic coordinators/graphic artists with a job description stating, "the position also creates ads," and sought applicants with experience in graphic design.
• Caroll Stacklin (publisher and another decision-maker) and Gilbert both admit they knew Plaintiff wanted the job of ad traffic coordinator, yet when ad traffic coordinator jobs became available - even within a matter of a month or two of Plaintiff applying for it, neither contacted Plaintiff or hired her, despite her 17-year tenure with the company and the fact that Plaintiff had never withdrawn her application.
• In the midst of deciding who to hire and who to fire during the restructuring, Stacklin was making inquiries about Plaintiff's FMLA claim, corresponding with Hana Zach, who functioned as the local human resources representative, and Laura Williams, the Vice President of Human Resources.
• Defendants tried to explain Stacklin's email communications about Plaintiff's FMLA leave as "due diligence" it conducted with respect to the restructuring. However, this explanation was not credible and instead appeared to be a cover up for Defendants trying to fire an employee they viewed as a problem. The evidence that there was no true due diligence includes the following: Stacklin never mentioned "due diligence" in her deposition when asked about her email communications regarding Plaintiff; there was no documentation about how the termination decisions were made, something that typically would be included in any due diligence; Defendants conducted no interviews of applicants as part of the selection process; and Defendants had no notes of any conversations among the decision-makers or on how decisions were made. Instead, Defendants had only Gilbert's ranking chart - and if there had truly been any due diligence by human resources, upper management or counsel, Defendants would have looked at the chart and seen the obvious disparity in the attendance ranking Gilbert gave Plaintiff as compared to the ranking given to every other employee in the department - none of whom had ever taken FMLA leave.
• Gilbert changed her testimony on one of the key issues in this case - which was what she knew when she prepared the ranking chart (which as described above was unlawful) used by Defendants to fire Plaintiff. At trial, Gilbert claimed that her ranking chart was not part of the decision-making process to make it appear as though she ranked Plaintiff without knowing the reason she was asked to do so. Gilbert was impeached with her deposition testimony, in which she plainly testified, "[the chart] actually was the first thing that I was ever asked to do after I found out we were going to outsource." At trial, Gilbert admitted that she was changing her testimony. This was a critical issue because the chart - which was unlawful under the FMLA because Plaintiff was ranked poorly on account of her FMLA leaves - was the basis for firing Plaintiff. It is axiomatic that Defendants cannot prove good faith when one of the decisionmakers lied under oath about the very decision at issue.
• Other witnesses lacked credibility at trial. Stacklin, one of the other decision makers, testified about how dire the economic situation was at the company and the drastic measures that needed to be taken both with respect to Plaintiff's demotion and termination. Yet, Stacklin admitted under cross examination that for at least two straight years during this "financial crisis," she got a bonus of $40,000 per year in addition to her six figure salary.
• Similarly, Stacklin also testified how "ridiculously hard" it was to lay people off, yet when she could have rehired one of those very same employees (as proven by Defendants' continued efforts to recruit ad traffic coordinators), Stacklin did not reach out to Plaintiff, who she knew had just applied for the job, wanted the job, met all of the requirements of the job and had been a dedicated employee for seventeen years. Instead, Stacklin hired seven people from outside the company.
• After Plaintiff's superiors (Stacklin, Gilbert and Don Stamper) testified that Plaintiff was a good employee, who they liked working with, who was never disciplined, who was never written up, was dedicated to her job, who took pride in her work, who had good communication skills and who was never in jeopardy of losing her job over any performance issue, Defendants chose to call two current employees of another Defendant, Shaw Media, to testify that Plaintiff was a bad employee who no one wanted to work with, who yelled at people and made people cry. Defendants' attempt to muddy Plaintiff up in front of the jury knowing that they never claimed Plaintiff was demoted or fired for any of these reasons is further evidence that they did not act in good faith.
In sum, Defendants presented no credible evidence at trial to show they acted in good faith and reasonably believed that their conduct was consistent with the law. Instead, the evidence showed that Defendants knew their conduct was unlawful and simply tried to cover it up at the time Plaintiff was demoted and fired, and continued trying to cover it up at trial. As such, Plaintiff should be awarded liquidated damages in the amount of $75,182.73 ($65,673.01 back pay + 9,509.72 prejudgment interest).
2. FLSA Claim
With respect to the jury's verdict that Defendants violated the FLSA by failing to pay Plaintiff overtime wages, Defendants cannot establish that they had reasonable grounds for believing that their actions did not violate the FLSA, as supported by the following evidence:
• As Caroll Stacklin testified, all managers, including Plaintiff's direct manager, Carol Gilbert, were trained on the overtime requirements under the law. Yet, as the jury concluded, Plaintiff worked more than 40 hours a week in many weeks and was never paid overtime.
• Plaintiff testified there were many times that she worked off the clock - either by clocking out at the end of the day and going back to work or coming in early and clocking in later - and that Gilbert was aware of this because Plaintiff told Gilbert about the extra time worked.
• Gilbert yelled at Plaintiff for recording working more than 40 hours a week and required her to deduct time for lunches that Plaintiff never took.
• Gilbert repeatedly altered Plaintiff's time cards so that Plaintiff never was paid for more than 4 hours a week.
• Even Sue Krish, who handled the time cards when Gilbert was out, changed Plaintiff's time card to make it appear that Plaintiff had left work earlier than she actually had, which resulted in Plaintiff being paid exactly 40 hours and not for overtime she worked.
• For years into this litigation, Defendants denied that Plaintiff ever worked overtime without pay, yet when Gilbert was deposed, she admitted that she knew Plaintiff had worked overtime, knew Plaintiff was not paid for that overtime, and never did anything to ensure that Plaintiff was paid for it. Instead, Gilbert tried to blame Plaintiff, claiming falsely she did not report the overtime because Plaintiff asked her not to.
• Maggie Grover, a disinterested third party who reported to Gilbert at the same time Plaintiff did, testified that she witnessed Plaintiff clock out at the end of the day and go back to her desk and continue working.
• Maggie Grover also testified that overtime was not allowed at GateHouse, meaning employees could work overtime, but they would never get paid for it.
• Two years into the litigation, and after requiring Plaintiff to hire lawyers and file a case in federal court to recover money she was undisputedly owed, Defendants tried to absolve themselves of liability by paying Plaintiff $180 and claimed this was the most Plaintiff would ever be entitled to receive.
• Consistent with the testimony of Plaintiff and Maggie Grover, no one in the entire composing department was paid a single hour of overtime for the entire year of 2010. This is so despite the fact that Defendants' witnesses all testified that although overtime was discouraged, they would be paid if they worked it. Indeed, Jay Bogardus (one of the current Shaw Media employees who was called to say bad things about Plaintiff) testified that he knew of an employee who had worked overtime in 2010 and had been paid, yet the records do not support this claim. Further, Gilbert testified that given the nature of Defendants' deadline-driven business, it would be unusual if there was not overtime worked in Plaintiff's department, yet again, not a single hour of overtime was paid in 2010.
In sum, the evidence shows that Defendants plainly knew Plaintiff was entitled to be paid overtime wages, yet they went to great lengths to deny her these wages. While Gilbert tried to blame Plaintiff for changing her own time cards and otherwise denied knowing about Plaintiff's overtime, the Court and the jury had the opportunity to observe Gilbert throughout the trial and conclude that she simply was not credible on this or many other points. Gilbert's non-credible denials do not amount to good faith and Defendants have failed to meet their burden.
As for the amount of liquidated damages, that is determined by first calculating the unpaid overtime compensation. An employer who violates the overtime provisions of the FLSA shall be liable to the employee affected in the amount of her unpaid overtime compensation and in an additional equal amount as liquidated damages. 29 USCS § 216. As noted above, the jury found Plaintiff worked 37.5 hours of overtime in 2010 and it is undisputed that Plaintiff's hourly rate was $20, meaning her overtime rate was $30 per hour ($20 x. 1.5). Accordingly, Plaintiff respectfully requests entry of judgment in the amount of $1,125 for the unpaid overtime and an additional $1,125 as liquidated damages, for a total of $2,250 on her FLSA claim. See also Shea,152 F.3d at 733 (noting that there is a "strong presumption" in favor of doubling); Bankston, 60 F.3d at 1254. ("Doubling is the norm, not the exception").
IV. Statutory Penalty Under The Illinois Minimum Wage Law
On Plaintiff's claim for unpaid overtime under the Illinois Minimum Wage Law ("IMWL"), and separate from recovering $1,125 in overtime pay and an equal amount for liquidated damages under the FLSA, Plaintiff is also entitled to a statutory penalty. Specifically, under the IMWL, an employee who is not paid as the statute requires is entitled to recover the amount of the underpayment, plus "damages of 2% of the amount of any such underpayments for each month following the date of payment during which such underpayments remain unpaid." 820 ILCS 105/12(a). As one district court observed, "It would appear that this penalty is imposed over and above the damages, including liquidated damages, that are available under the FLSA." Calderon v. J. Younes Constr. Llc & John Younes, LLC, 2013 U.S. Dist. LEXIS 87817 at *23 (N.D. Ill. June 23, 2013)(Kennelly, J.) Here, as of April 30, 2015, the number of months Plaintiff remained unpaid is approximately 50. Accordingly, the statutory penalty Defendants owe Plaintiff is $1,125.00 ($1,125 x .02 x 50 months).
V. Reinstatement Or Front Pay
Under the FMLA, an employer who violates the statute "shall be liable ... for such equitable relief as may be appropriate, including employment, reinstatement, and promotion." 29 U.S.C. § 2617(a)(1)(B). Alternatively, front pay is an equitable remedy designed to supplant reinstatement where reinstatement would be infeasible. Breneisen v. Motorola, Inc., 2009 U.S. Dist. LEXIS 52360 (N.D. Ill. June 22, 2009)(citing Franzen, 543 F.3d at 426). Front pay is designed to place the plaintiff "in the identical financial position that he would have occupied had he been reinstated." Avitia v. Metropolitan Club, 49 F.3d 1219, 1231 (7th Cir. 1995). Front pay is also an appropriate remedy for Plaintiff's state law claim for retaliatory discharge. See Hunt v. DaVita, Inc., 2010 U.S. Dist. LEXIS 128527, *3-4 (S.D. Ill.Dec. 6, 2010)(as a matter of Illinois law a wrongfully discharged employee may recover lost back pay and front pay from her former employer for the period following the discharge until the employee either finds new employment or is reinstated)(citations omitted).
Here, Plaintiff seeks reinstatement to the position of Senior Production Coordinator, or in the alternative if reinstatement is infeasible, front pay for 3 years. Plaintiff's request for reinstatement or 3 years of front pay is reasonable in light of her qualifications, long-term history of employment with Defendants, commitment to continued employment, and established earnings. Based on the difference between Plaintiff's W-2 earnings and the W-2 earnings of the Senior Production Coordinator for 2014 (Joint Exhibits 15 and 20), the amount of front pay for 3 years is $16,148.46 ($5,382.82 x 3 years). Accordingly, Plaintiff seeks reinstatement or $16,148.46 in front pay.
VI. Award For Adverse Tax Consequences
As an additional remedy, Plaintiff also seeks $6,567.30 to offset the tax burden she will incur as a result of her lump-sum back-pay and/or front pay award, which the Seventh Circuit recently recognized as an appropriate remedy in employment discrimination cases. EEOC v. NorthernStar Hospitality, Inc., 777 F.3d 898, 902-904 (7th Cir. 2015)(citing Eshelman v. Agere Sys., 554 F.3d 426, 441 (3d Cir. 2009) (holding that "an award to compensate a prevailing employee for her increased tax burden as a result of a lump sum award will, in the appropriate case, help to make a victim whole") and Sears v. Atchison, Topeka & Santa Fe Ry. Co., 749 F.2d 1451, 1456 (10th Cir. 1984) (upholding award of tax component to back pay given a district court's "wide discretion in fashioning remedies to make victims of discrimination whole")).
While the Seventh Circuit found an award to offset higher taxes appropriate in a Title VII case, such an award is also appropriate under the FMLA, which similarly provides for equitable relief. 29 U.S.C. § 2617(a)(1)(B); see also Powell v. N. Ark. College, 2009 U.S. Dist. LEXIS 59826 (W.D. Ark. July 1, 2009)(in FMLA case finding "the Court is of the opinion that if the back pay awarded by the jury will push [plaintiff] into a higher tax bracket than she would have been in had the monies been timely paid, in equity the [defendant] should be required to cover that expense as part of making [plaintiff] whole." Powell v. N. Ark. College, 2009 U.S. Dist. LEXIS 59826 at *7 (W.D. Ark. July 1, 2009).
Here, upon Plaintiff's receipt of $65,673.01 in back pay, taxable as wages in the year received, seeNorthern Star Hospitality, 777 F.3d at 902 (citing IRS Pub. No. 957 (Rev. Jan. 2013), available at www.irs.gov/pub/irs-pdf/p957.pdf), Plaintiff will be bumped into a higher tax bracket. The resulting tax increase, which would not have occurred had she received the pay on a regular, scheduled basis as she should have, will then decrease the total award she will receive. As the Seventh Circuit explained, without the tax-component award, Plaintiff will not be made whole. Northern Star Hospitality, 777 F.3d at 902. Accordingly, Plaintiff should be awarded $6,567.30 to offset the additional tax burden.
Plaintiff's W-2 for 2014 reflects wages of $35,665.40. (Joint Exhibit 15) If Plaintiff's wages remain consistent in 2015, which is probable given that she remains employed by the same company, her tax bracket would be 15%, but adding the back pay award of $65,673.01 would bump her to the next highest tax bracket of 25%. (see Rev. Proc. 2014-61 available at www.irs.gov/pub/irs-drop/rp-14-61.pdf). Accordingly, Plaintiff calculated the tax component by multiplying the back pay award by the 10% increase in taxes.
VII. Attorneys' Fees And Costs
In addition to the damages set forth above, Plaintiff seeks attorneys' fees and costs for prevailing on her overtime and FMLA claims. With respect to the FMLA claims, the statute provides: "The court in such an action shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney's fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant." 29 U.S.C. § 2617(a)(3). As the Seventh Circuit has explained, "[u]nlike most other statutory fee-shifting provisions, section 2617 requires an award of attorneys' fees to the plaintiff when applicable. The award is not left to the discretion of the district court." Franzen v.Ellis Corp., 543 F.3d 420, 430 (7th Cir. 2008)(emphasis in original)(citations omitted). In this way, the fee-shifting provision under the FMLA is more favorable toward prevailing plaintiffs than many other statutory fee-shifting provisions. Id. (citing McDonnell v. Miller Oil Co., Inc., 968 F.Supp. 288, 293 (E.D. Va. 1997)).
Plaintiff also seeks attorneys' fees and costs for prevailing on her overtime claims. The FLSA directs courts to award reasonable attorneys' fees and costs to prevailing parties. See 29 U.S.C. § 216(b) ("The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action."); Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 550 (7th Cir. 1999). Similarly, the IMWL states that a prevailing party "may recover * * * costs and such reasonable attorney's fees as may be allowed by the Court." 820 ILCS 105/12(a).
Accordingly, Plaintiff respectfully requests reasonable attorneys' fees and costs, which will be detailed in separately filed motions pursuant to Federal Rule of Civil Procedure 54(d) and Local Rules 54.1 and 54.3
VIII. Conclusion
Based on the foregoing, Plaintiff respectfully requests this Court enter judgment in Plaintiff's favor and award Plaintiff the following relief consistent with the jury's verdict and case law: back pay in the amount of $65,673.01; prejudgment interest in the amount of $9,509.72; unpaid overtime compensation in the amount of $1,125; liquidated damages in the amount of $76,307.73 ($65,673.01 + $9,509.72 + $1,125); statutory penalty under the IMWL in the amount of $1,125; emotional distress damages in the amount of $60,000; punitive damages in the amount of $125,000; reinstatement or front pay in the amount of $16,148.46; and $6,567.30 to offset the additional taxes she will owe as a result of the back pay award. Plaintiff also respectfully requests attorneys' fees as determined by Federal Rule of Civil Procedure 54(d)(2) and Local Rule 54.3 and costs as determined by Federal Rule of Civil Procedure 54(d)(1) and Local Rule 54.1.
Prevailing Prime Rage 3.25
Monthly Rate: 0.00270833
Date Prejudgment Interest on $65,673. 01
2/17/2011
$65,673.01
3/17/2011
$65,850.87
4/17/2011
$66,029.22
5/17/2011
$66,208.05
6/17/2011
$66,387.36
7/17/2011
$66,567.16
8/17/2011
$66,747.45
9/17/2011
$66,928.22
10/17/2011
$67,109.48
11/17/2011
$67,291.24
12/17/2011
$67,473.49
1/17/2012
$67,656.23
2/17/2012
$67,839.46
3/17/2012
$68,023.19
4/17/2012
$68,207.42
5/17/2012
$68,392.15
6/17/2012
$68,577.38
7/17/2012
$68,763.11
8/17/2012
$68,949.34
9/17/2012
$69,136.08
10/17/2012
$69,323.32
11/17/2012
$69,511.07
12/17/2012
$69,699.33
1/17/2013
$69,888.10
2/17/2013
$70,077.38
3/17/2013
$70,267.17
4/17/2013
$70,457.48
5/17/2013
$70,648. 30
6/17/2013
$70,839.64
7/17/2013
$71,031.50
8/17/2013
$71,223.88
9/17/2013
$71,416.77
10/17/2013
$71,610.19
11/17/2013
$71,804.14
12/17/2013
$71,998.61
1/17/2014
$72,193.60
2/17/2014
$72,389.13
3/17/2014
$72,585.18
4/17/2014
$72,781.77
5/17/2014
$72,978.88
6/17/2014
$73,176.53
7/17/2014
$73,374.72
8/17/2014
$73,573.44
9/17/2014
$73,772.70
10/17/2014
$73,972.51
11/17/2014
$74,172.85
12/17/2014
$74,373.73
1/17/2015
$74,575.16
2/17/2015
$74,777.13
3/17/2015
$74,979.66
4/17/2015
$75,182.73
75,182.73
65,673.01
Total Prejudgment Interest
9,509.72
PLAINTIFF'S MOTION EXHIBIT 1
JURY VERDICT FOR PLAINTIFF
Verdict Form-Plaintiff Rosemarie Wiseman's Claim for Overtime Wages
1. Do you find that Plaintiff Rosemarie Wiseman has proven by a preponderance of the evidence that Defendants failed to pay her overtime wages in violation of the FLSA?
X Yes
___No
If the Answer is Yes, you must proceed to Question 2. If the Answer is No, you need not answer any more questions on this Form.
2. Do you find that Defendants' failure to pay. overtime wages to Plaintiff Rosemarie Wiseman was willful; that is that Defendants knew that their conduct was prohibited by the FLSA, or that they showed reckless disregard for whether the FLSA prohibited their conduct?
X Yes
___No
If the Answer to Question 2 is Yes, please calculate the amount of overtime hours that you find Plaintiff Rosemarie Wiseman worked during the three years beginning on February 28, 2016 and ending on February 28,2019.
Amount of Overtime Hours from February 28, 2016 through March 30, 2017: 450
Amount of Overtime Hours from March 31, 2017 through January 12, 2018: 200
If the Answer to Question 2 is No, please calculate the amount of unpaid overtime hours that you find Plaintiff Rosemarie Wiseman worked during the two years beginning on February 28, 2017 until February 28, 2019.
Amount of Overtime Hours from February' 28, 2017 through March 30, 2017:___
Amount of Overtime Hours from March 31,2017 through January 12, 2018:___
Each juror must sign below if his or her findings and verdict is accurately reflected above.
Verdict Form-Plaintiff Rosemarie Wiseman's Claim for Unpaid Vacation Pay under the IWCPA
1. Do you find that Plaintiff Rosemarie Wiseman has proven by a preponderance of the evidence that Defendants failed to pay her final compensation in the form of the monetary equivalent of earned vacation owed in violation of the IWCPA?
X Yes
___No
If the Answer is Yes, you must proceed to Question 2. If the Answer is No, you need not answer any more questions on this Form.
2. Please calculate the number of unpaid vacation hours under the IWPCA that Plaintiff Rosemarie Wiseman should have received from Defendants.