Castagnoli v. Center for Neurosciences, LLC et al

Filing 39

ORDER AND OPINION entered by Chief Judge James E. Shadid on 12/23/2015: IT IS ORDERED that the Defendants' Motion for summary judgment 23 is granted. (SEE FULL WRITTEN ORDER) (JRK, ilcd)

E-FILED

Wednesday, 23 December, 2015 11:58:27 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
TAMMY CASTAGNOLI,
Plaintiff
v.
THE CENTER FOR NEUROSCIENCES,
LLC and BASSAM ASSAF,
Defendants.

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Case No. 13-4055

ORDER AND OPINION
This matter is now before the Court on Defendants’ Motion [23] for Summary Judgment,
Plaintiff’s Response [35], and Defendants’ Reply [38] thereto. The Motion is fully briefed, and
for the reasons set forth below, Defendant’s motion for summary judgment is GRANTED.
BACKGROUND
Plaintiff, Tammy Castagnoli, was an employee of Defendant, The Center for
Neurosciences, LLC (“The Center”) from October, 2009 until her termination on January 6,
2012. Dr. Assaf is the physician and owner of The Center. Ms. Castagnoli brought this action
against Defendants, alleging: (1) violation of the Illinois Minimum Wage Law, 820 ILCS
105/4(a) (“IMWL”), (2) the Fair Labor Standards Act, 29 U.S.C. § 207 (“FLSA”), and (3) the
Illinois Wage Payment and Collection Act, 820 ILCD 115/4 (“IWPCA”) for failure to
compensate Plaintiff for 1 and ½ times her base pay rate for unpaid lunches and hours worked in
excess of 40 hours in a particular workweek; (4) retaliatory discharge in violation of Illinois
public policy, and (5) retaliatory discharge in violation of the FLSA.
Specifically, Castagnoli’s claims relate to: (1) pay for working through her lunch break
on unspecified days or weeks; (2) Castagnoli’s overtime pay for hours worked in excess of 40
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hours during the November 7 through November 18, 2011 pay period; and (3) her termination on
January 6, 2012. Defendants dispute Castagnoli’s wage claims, and they further allege that
Plaintiff was terminated as a result of: (1) Plaintiff’s hostile attitude and behavioral problems in
dealing with The Center’s patients; (2) Plaintiff’s abuse of company time and resources for her
own personal issues; and (3) Plaintiff’s failure to perform her billing duties, which Dr. Assaf
determined was causing The Center financial difficulties.
Plaintiff Castagnoli began working at The Center in October of 2009 in a full time billing
position at an hourly rate of $12.50. Her scheduled hours were 8:00 a.m. to 4:30 p.m. Monday
through Friday. The Center is a small medical office employing around four to six employees,
including her direct supervisor and officer manager Denise Duethman. Castagnoli’s job duties
included scheduling patients, answering phone calls, checking patients out, collecting copayments, posting accounts receivable, and performing electronic and manual billing.
Events Leading to Plaintiff’s Wage Claims and Subsequent Termination
In May of 2011, Dr. Assaf met with Plaintiff to discuss her performance relating to an
incident where she refused to reimburse a patient for an incorrectly assessed no-show fee.
Despite the patient calling numerous times, Plaintiff did not notify Duethman or Assaf about the
incident. The patient later filed complaints with the Better Business Bureau because of the
incident.
Also in May of 2011, Plaintiff was counseled by Assaf to refrain from making unilateral
decisions on behalf of The Center that fell outside of her routine responsibilities after Plaintiff
sent a fax to an attorney’s office authorizing a one-third reduction in a patient’s bill without first
obtaining Assaf’s approval.

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On November 2, 2011, Duethman counseled Plaintiff about her interactions with patients
after an incident where Plaintiff was abrupt and harsh to a patient who mistakenly showed up for
an appointment on the wrong day. Duethman told her that she is not to make decisions regarding
patient medical conditions or appointment issues without checking with Duethman or Assaf.
On November 7, 2011, Duethman counseled Plaintiff about making decisions regarding
patients’ medical conditions without consulting Duethman or Assaf first. This was in response to
Plaintiff answering a nurse’s phone call about a patient’s condition by informing the nurse that
The Center did not offer a particular service, and ending the call without informing Assaf or
Duethman about the patient’s condition or the substance of the phone conversation.
On November 9, 2011, Duethman met with Plaintiff to address numerous issues,
including: Plaintiff contacting a health insurance company to apply for insurance directly instead
of going through The Center as required; not clocking out on her time-card when she left for
three hours on November 2, 2011; taking excessive time off from work, browsing the internet
and attending to personal matters while at work, and shifting her hours without permission and
marking those hours as overtime. Castagnoli was informed that she was not to work outside of
the 8:00-4:30 business hours or on weekends without approval or request from Duethman or
Assaf. Plaintiff also failed to submit billings on time for sleep studies in early November and was
reminded that billing was to be submitted the same day it is received. Finally, Duethman told
Castagnoli that her tone with patients is often harsh and aggressive, and she needed to be more
friendly and courteous to patients.
On November 10, 2011, Duethman met with Plaintiff to remind her to consult with her
supervisors when a patient makes a request, after Plaintiff ignored a request from a patient
without looking into the issue or asking Duethman or Assaf.

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On November 11, 2011, Dr. Assaf spoke with Plaintiff and denied her request to work on
a Saturday. He reminded her that she needed to adhere to the regular 8:00-4:30 business hours
unless approved or requested by Duethman or himself, and that if she is allowed to come in early
or stay late on weekdays to make up for missed time within the same week, she was not to work
overtime or exceed 40 hours per week.
On November 23, 2011, Duethman and Assaf met with Castagnoli in response to
complaints made by the mother of a patient about Plaintiff’s repeated rude behavior towards her.
On November 25, 2011, Plaintiff received a paycheck for the November 7 to November
18 pay period. Plaintiff’s pay stub indicated she worked 33 ½ hours the first week and 45 hours
the second week, for a total of 78.50. She was paid at the regular rate for all 78.50 hours.
On December 2, 2011, Duethman and Assaf met with Castagnoli, advising her that she
had been working hours that deviated from the regular hours because of her personal issues, and
that The Center did not request her to do so. She reminded of the earlier 11/11/2011 conversation
where she was told that she could only make up for missed hours by shifting her work hours
within the same day or same week, and she was not to exceed 40 hours. She was again told that
she was to work from 8:00 to 4:30 unless directed otherwise.
On December 11, 2011, Plaintiff filed a complaint with the Illinois Department of Labor
alleging violations of the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq. and the One Day
Rest in Seven Act, 820 ILCS 140/1 et seq. for unpaid lunches and unpaid overtime. In the
complaint form, Plaintiff checked the box indicating she wanted the complaint to remain
confidential.
On December 29, 2011, the IDOL issued a letter to The Center seeking information
related to Plaintiff’s complaint.

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On January 3, 2012, Dr. Assaf made the decision to terminate Plaintiff’s employment
after receiving an email on the same date from Plaintiff regarding billing not being processed for
the month of December 2011 because Medicare constituted about 55% of the insurance
spectrum, which is very significant.
On January 5, 2012, The Center received a letter from the IDOL. In addition, Plaintiff
alleges that The Center received a phone call from an IDOL investigator that same day. (See Def.
Ex. B at 249).
On January 6, 2012, Duethman and Assaf met with Castagnoli and advised her that she
was terminated for: (1) major continued hostile and other behavioral problems in dealing with
the patients of the company rather than working to help the patients and the company meeting its
goal pertaining to the patient care and patient needs; (2) abuse of the company time and
resources for her own personal issues such as performing her own personal affairs on the
company’s times and resources; and (3) continued gross negligence and failure to perform her
work duties in billing processing and administration for the company with resultant severe
financial difficulty for the company. In addition, Plaintiff alleges that Dr. Assaf stated “you
better not fight this” after terminating her.
On January 9, 2012, Plaintiff requested a copy of her employment file, and on January
18th, The Center mailed plaintiff her personnel records.
On January 20, 2012, Plaintiff received her final paycheck for all of her regular pay. In
addition, she was given 16 hours of “final pay.”
Defendant’s Motion for Summary Judgment
1. Legal Standard

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A court shall grant summary judgment if the movant shows there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). Under Rule 56(c), summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary
judgment is mandated “after adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial” Id. at 322-23.

2. Analysis
Defendants seek summary judgment as to Plaintiff’s claims for the following reasons:
(1) Plaintiff’s unpaid overtime claims fail because she cannot show The Center’s
records, which demonstrate that she was paid for all hours worked are
inaccurate or inadequate, and she has not provided any evidence showing the
amount of, or dates of her alleged unpaid work;
(2) Plaintiff’s unpaid overtime claims arising from the November 7 to November
18 pay period should be denied because: (a) The Center has already paid any
amounts allegedly owed to Plaintiff for this claim pursuant to the Illinois
Department of Labor’s determination in connection with Castagnoli’s IDOL
complaint and her claim is therefore barred by the doctrine of accord and
satisfaction; (b) even if Plaintiff’s claim was not barred, it fails as a matter of
law because Castagnoli cannot prove that she actually performed the work for
which she claims she was improperly compensated; and (c) Plaintiff’s claims
for unpaid overtime should be dismissed because The Center had expressly
instructed Castagnoli not to work outside of The Center’s normal business
hours without prior approval days before the pay period in which she claims
to have worked unpaid overtime in November of 2011;
(3) Plaintiff’s claim for retaliatory discharge in violation of Illinois public policy
fails as a matter of law because no reasonable trier of fact could find
Plaintiff’s filing of a complaint with IDOL to be the “but for” cause of her
discharge, in light of The Center’s evidence that Plaintiff was discharged for
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her ongoing performance issues that preceded her alleged protective activity,
as well as Dr. Assaf’s lack of knowledge that Plaintiff had filed any
complaints with the Illinois Department of Labor at the time he made the
decision to terminate her employment;
(4) Plaintiff’s FLSA retaliatory discharge claim fails because she cannot show a
causal link between her protected activity and her termination, and Plaintiff
cannot demonstrate that The Center’s legitimate, non-discriminatory reason
for her termination is a pretext for discrimination under the FLSA.
a) Plaintiff’s Wage Claim for Unspecified Overtime and Unpaid Lunch
Plaintiff alleges in her Complaint that The Center failed to pay her for overtime and time
spend working through lunch in violation of the Fair Labor Standards Act (29 U.S.C. § 207)1, the
Illinois Minimum Wage Law (820 ILCS 105/4(a))2, and the Illinois Wage Payment Collection
Act (820 ILCS 115/4)3.
Plaintiff has the burden of proving that she performed overtime work for which she was
not properly compensated. See Turner v. The Saloon, Ltd., 595 F.3d 679, 691 (7th Cir. 2010).
Because Plaintiff alleges that her employer’s records are not accurate, she has the burden of
producing sufficient evidence to show the amount and extent of that work as a matter of just and
reasonable inference. Turner, 595 F.3d at 691 (citing Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680, 687 (1946) superseded on other grounds by statute, 29 U.S.C. §§251-62). If such a
showing is made, the burden then shifts to the employer to produce evidence of either the precise
amount of work performed, or evidence negating the reasonableness of the inference to be drawn

1

Section 207 of the FLSA states:(1) Except as otherwise provided in this section, no employer shall employ any of
his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is
employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer
than forty hours unless such employee receives compensation for his employment in excess of the hours above
specified at a rate not less than one and one-half times the regular rate at which he is employed. 29 U.S.C. § 207.
2
Chapter 105, Section 4(a) of the Illinois Minimum Wage Law states, in relevant part:
. . . on and after July 1, 2010 every employer shall pay to each of his or her employees who is 18 years of age or
older in every occupation wages of not less than $8.25 per hour. 820 ILCS 105/4.
3
Chapter 115, Section 4 of the Illinois Wage Payment Collection Act states:
4. All wages earned by any employee during a semi-monthly or bi-weekly pay period shall be paid to such employee
not later than 13 days after the end of the pay period in which such wages were earned. 820 ILCS 115/4.

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from the employee’s evidence. Marchman v. Advocate Bethany Hosp., 2006 WL 1987815 at *78 (N.D. Ill. 2006) (citing Anderson, 328 U.S. at 687).
Here, Plaintiff agrees with Defendants that the burden ultimately rests on her to prove she
performed work for which she was not compensated at trial. However, in response to
Defendants’ Motion for Summary Judgment, Plaintiff argues that she “is not held to the standard
of producing material evidence in order to defeat Defendant’s summary judgment motion—
rather, Plaintiff must show that there is a genuine dispute of material facts as to whether that
Defendant has shown that their employment records are valid.” Plaintiff argues that a genuine
dispute of material fact exists regarding the accuracy of The Center’s employment records
because when she requested her personnel record from The Center on January 9, 2012 it only
contained one time card.
Plaintiff’s claim for unspecified unpaid lunches and overtime fails as a matter of law
because she has offered no evidence to show she performed work for which she was not
compensated. Indeed, as Plaintiff’s statement of undisputed material fact concedes, “Plaintiff has
no independent recollection as to what days she took a lunch break and what days she did not . . .
Plaintiff has no documentary evidence that supports her claim that she ever worked through a
lunch break without being paid for her hours worked.” Plaintiff’s Response, pg. 4 at ¶39. And
“[w]henever Castagnoli notified [The Center] of an instance in which she worked through lunch,
she was paid for her time worked through lunch.” Plaintiff’s Response at pg. 3, ¶37.
Furthermore, with the exception of one pay period in November 2011, Plaintiff does not claim
that The Center’s payroll records are inaccurate. All Plaintiff alleged is that The Center’s records
were incomplete because the employment record she requested (before this case was filed) did

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not contain copies of her pay stubs. She does not identify any specific days where she was not
paid for working lunches, nor does she know what work she performed during those times.
Because Plaintiff has failed to meet her burden of proving she performed work during
lunches for which she was not properly compensated, and has further failed to “produce
sufficient evidence to show the amount and extent of that work as a matter of just and reasonable
inference,” Plaintiff’s claim for unpaid wages relating to work performed during lunch breaks
should be dismissed. See Turner, 595 F.3d at 691 (“Although Turner disputes the accuracy of
The Saloon’s records, his mere assertions are insufficient to create a jury issue.”).
b) Plaintiff’s Claim for Unpaid Overtime from November 7 to November 18, 2011
Plaintiff’s Complaint also claims violations of the FLSA and IMWL, alleging unpaid
overtime for work performed outside of business hours during the November 7 to November 18,
2011 pay period. Defendants move for summary judgment on this claim because: (1) The Center
had already paid any amounts allegedly owed to Plaintiff pursuant to the Illinois Department of
Labor’s determination relating to Plaintiff’s IDOL complaint and the claim is therefore barred by
the doctrine of accord and satisfaction; (2) alternatively, Plaintiff’s claim fails as a matter of law
because she cannot prove that she actually performed the work for which she claims she was
improperly compensated; and (3) her claim should be dismissed because The Center expressly
instructed Castagnoli not to work outside of The Center’s normal business hours without prior
approval only days before the pay period in which she claims to have worked unpaid overtime in
November 2011. Plaintiff failed to respond to the portion of Defendants’ motion for summary
judgment addressing the unpaid overtime claim for the November 2011 pay period.
When a motion for summary judgment is presented to the Court, it is viewed in the light
most favorable to the non-moving party. Salvadori v. Franklin Sch. Dist., 293 F.3d 989, 992 (7th

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Cir. 2002). However, when a party fails to respond to a motion for summary judgment, that
failure constitutes an admission by the non-movant that there are no disputed issues of genuine
fact warranting a trial. See Flynn v. Sandahl, 58 F.3d 283, 288 (7th Cir. 1995). If a party fails to
properly support an assertion of fact or fails to properly address another party’s assertion of fact
as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address
the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary
judgment if the motion and supporting materials—including the facts considered undisputed—
show that the movant is entitled to it; or (4) issue any other appropriate order. Fed. R. Civ. P.
56(e) (emphasis added); See also Local Rule 7.1(D)(1)(c) (“Argument: With or without
additional citations to authorities, respond directly to the argument in the motion for summary
judgment, for example, by explaining any disagreement with the movant’s explanation of each
point of law, why a point of law does not apply to the undisputed material facts, why its
application does not entitle movant to relief or why, for other reasons, summary judgment should
not be granted.”).
Here, Plaintiff did not directly respond to the argument in Defendants’ motion for
summary judgment. However, Plaintiff’s response included a recitation of material facts not in
dispute, such as:
¶42. Plaintiff testified that she did not have any wage issues in 2009 or 2010.
¶43. Plaintiff acknowledged during her deposition that the first time she had any
issues with alleged unpaid overtime was during the November 7 to November
18, 2011 pay period.
¶¶44, 45. Plaintiff admits that she received payment in the amount of $33.75 in
response to the Illinois Department of Labor’s determination on her claim for
alleged unpaid overtime, she does not dispute the IDOL’s finding, and that
she does not have any additional evidence other than what was submitted to
IDOL.
¶46. Plaintiff further admitted that she punched in before The Center’s normal
business hours began, when her supervisor was not present, on a number of
days during the disputed pay period.
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¶47. She admitted that she has no documentary evidence as to what work she
would have performed during the non-business hours, and the only work she
could remember performing was janitorial duties not previously identified by
Castagnoli as falling within her positions responsibilities. She could not recall
what work, if any, she performed during a number of the non-business hours
which she claims to have worked.
¶48. The non-business hours claimed to have been worked by Castagnoli during
the single November 2011 pay period took place only days after Castagnoli
had been expressly instructed by The Center not to work outside of TCN’s
normal business hours without prior approval from Dr. Assaf or Denise
Duethman—and that even in these circumstances Castagnoli was directed not
to work more than 40 hours within a single workweek. No such approval was
given to Castagnoli to work overtime hours for the pay period of November
of 2011.
Plaintiff has the burden of proving that she performed overtime work for which she was
not properly compensated. See Turner, 595 F.3d at 691. If Plaintiff alleges that her employer’s
records are not accurate, she has the burden of producing sufficient evidence to show the amount
and extent of that work as a matter of just and reasonable inference. Turner, 595 F.3d at 691
(citing Anderson, 328 U.S. at 687). If such a showing is made, the burden then shifts to the
employer to produce evidence of either the precise amount of work performed, or evidence
negating the reasonableness of the inference to be drawn from the employee’s evidence.
Marchman, 2006 WL 1987815 at *7-8 (N.D. Ill. 2006) (citing Anderson, 328 U.S. at 687).
The IWPCA requires that all wages earned by employees during a bi-weekly pay period
be paid not more than 13 days after the end of the pay period in which the wages were earned.
The FLSA and the IMWL require employers to compensate their employees at a rate of at least 1
and ½ times their normal rate of pay for any hours worked in excess of 40 hours in a given week.
Here, the Complaint, together with the depositions and exhibits, shows that Plaintiff was paid for
78.50 hours at her regular pay rate for the November 7 to November 18, 2011 pay period—33.50
hours for the week ending on November 11, 2011, and 45 hours for the week ending in on
November 18, 2011. See Defendants Exhibit HH. Thus, Plaintiff has met her initial burden of
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showing that she was not properly compensated for the 5 hours worked in excess of 40 for the
November 18, 2011 work week.
Because Plaintiff has met her initial burden of showing that she performed work for
which she was not compensated, the burden shifts to Defendants to show either the precise
amount of work performed, or evidence negating the reasonableness of the inference to be drawn
from the employee’s evidence. Marchman, 2006 WL 1987815 at *7-8 (N.D. Ill. 2006). Here,
Defendants claim that Plaintiff’s unpaid overtime claim fails as a matter of law because The
Center expressly instructed Castagnoli that she was prohibited from working overtime hours or
hours outside of The Center’s normal business hours. However, 29 C.F.R. § 785.13 states:
In all such cases it is the duty of the management to exercise its control and see
that the work is not performed if it does not want it to be performed. It cannot sit
back and accept the benefits without compensating for them. The mere
promulgation of a rule against such work is not enough. Management has the
power to enforce the rule and must make every effort to do so. 29 C.F.R. §
785.13(emphasis added)
Thus, Defendants cannot rely solely on their express instructions to Plaintiff not to perform
overtime work. Rather, the standard is whether the employer had actual or constructive
knowledge that the employee is working overtime. See Kellar v. Summit Seating Inc., 664 F.3d
169, 177 (7th Cir. 2011)
In Kellar, the Seventh Circuit found that “[a]lthough [the employee’s] work activities
were neither preliminary nor de minimis, her claimed work is nevertheless non-compensable”
because the employer neither knew nor should have known that the employee was working
overtime. Id. In determining whether an employer had actual or constructive knowledge of an
employee’s overtime work, “[a] court need only inquire whether the employer had the
opportunity through reasonable diligence to acquire knowledge.” Id. (citing Reich v. U.S. Dep’t
of Conservation & Natural Res., State of Ala., 28 F.3d 1076, 1082 (11th Cir. 1994). Like the
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employer in Kellar, Castagnoli’s time card showed that she clocked in before normal work
hours. See Kellar, 664 F.3d at 177. However, unlike Kellar, where the “employees were in the
habit of punching in early and then socializing until their work shifts began,” Defendants in this
case had “reason to suspect [Plaintiff] was acting contrary to the conditions prevailing in their
business generally.” Cf. Kellar, 664 F.3d at 177 (“Kellar’s behavior raised no flags”). Had The
Center exercised reasonable diligence, they would have had the opportunity to acquire
knowledge of Plaintiff’s hours by checking her time card that week. See Id. at 177. Thus,
Defendants’ claim that they lacked actual or constructive knowledge because they explicitly told
Plaintiff not to work overtime is insufficient to rebut Plaintiff’s claim.
Defendants next argue that Plaintiff’s unpaid overtime claim fails as a matter of law
because Castagnoli cannot prove that she actually performed the work for which she claims she
was improperly compensated, and further, that she failed to produce sufficient evidence to show
the amount and extent of that work as a matter of just and reasonable inference. See Anderson,
328 U.S. at 686-88. In support of this claim, Defendants argue that the work Castagnoli allegedly
performed—janitorial duties—was not a duty identified by Plaintiff as falling within her
position’s responsibilities. Plaintiff concedes as much in her response. See Pla. Resp. at ¶47. The
Supreme Court recently addressed whether an employee’s preliminary activities are compensable
under the FLSA, as amended by § 251 et seq,. in Integrity Staffing Sols., Inc. v. Busk, 135 S. Ct.
513 (2014).
In Integrity Staffing, the Supreme Court held that a warehouse employee’s time spent
waiting to undergo security screenings was not compensable under the FLSA because the pre- or
post- liminary activities were not the principal activity or activities which the employee was
employed to perform, and the screenings were not integral and indispensable to the employee’s

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duties. Id. at 518. The Court reasoned, “[a]n activity is therefore integral and indispensable to the
principal activities that an employee is employed to perform if it is an intrinsic element of those
activities and one with which the employee cannot dispense if he is to perform his principal
activities.” Id. Here, the record is insufficient for the Court to conclude as a matter of law
whether or not Plaintiff’s pre-business hours activities constituted compensable time.
Concededly, Plaintiff cannot remember the specific activities she performed during the week
ending on November 18, 2011, the “janitorial duties” likely fell outside of the responsibilities of
her job as a billing manager, and Plaintiff has not provided evidence that such duties were
“activities which the employee was employed to perform” or were “integral and indispensable”
to her duties. See id. But whether Plaintiff was routinely asked or expected to do janitorial duties
in addition to her billing duties is unclear from the record, and Defendants’ motion for summary
judgment is silent on the issue. As such, whether Plaintiff’s pre-business hours activities on the
week in question were compensable under the FSLA or IMWL presents a question of material
fact that would preclude a grant of summary judgment. However, because Defendants have
shown as a matter of law that Plaintiff’s overtime claim is barred under the alternative theory of
accord and satisfaction, discussed infra, summary judgment for the overtime claims is warranted.
Plaintiff’s overtime claim is barred because she already received payment for any unpaid
overtime in response to the IDOL investigation. Plaintiff’s response to Defendant’s motion for
summary judgment includes paragraphs 44 and 45 as undisputed material facts. Those facts state
that “Plaintiff admits that she received payment in the amount of $33.75 in response to the
Illinois Department of Labor’s determination on her claim for alleged unpaid overtime,” that
“she does not dispute the IDOL’s finding,” and that “she does not have any additional evidence
other than what was submitted to IDOL.”

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In Ecker v. Big Wheels, Inc., an Illinois appellate court was confronted with a wage claim
similar Castagnoli’s claim. 136 Ill. App. 3d 651 (Ill. App. 1985). That court held that the
plaintiff’s claim was barred because he had already recovered the disputed unpaid overtime
through an IDOL proceeding. Id. at 654-55. (“[W]e do not deem the intent of section 12 of the
Minimum Wage Law to be to subject the employer to actions by both the employee and the
Department. Rather the intent is to enable the employer to negotiate in good faith with the
Department and to be free from suit by the employee-assignor while the assignment is in
effect.”). Moreover, the court held “that an accord and satisfaction occurs when, after assigning a
wage claim to the Department, an employee accepts from the employer, the amount determined
by the Department to be due to the employee. Any other interpretation would constitute a
substantial deterrent to employer cooperation with the Department.” Id. at 655.
In sum, Plaintiff’s unpaid overtime claim fails as a matter of law because she was already
compensated for any unpaid overtime through the favorable outcome of the IDOL proceeding.4
Plaintiff does not dispute the IDOL’s determination or the amount awarded to her, and she
concedes that she has no additional evidence outside of what she provided to IDOL. Although
Plaintiff’s claim may not be barred by res judicata, because the Illinois Department of Labor is
not a judicial body, Plaintiff is not re-litigating the IDOL determination. Rather, she is seeking
the same recovery for the exact same claim that she was already awarded. Thus, a grant of
summary judgment in favor of Defendants is proper.
c) Plaintiff’s Claim for Retaliatory Discharge in Violation of Illinois Public Policy
Plaintiff next claims that she was discharged in retaliation for her IDOL complaint in
violation of Illinois public policy. In order to state a claim for retaliatory discharge, an employee
4

In addition to Plaintiff recovering $33.75 from The Center after her successful IDOL claim, The Center also
included 16 hours of “final pay” in Plaintiff’s last paycheck.

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must show: “(1) the employer discharged the employee, (2) in retaliation for the employee's
activities, and (3) that the discharge violates a clear mandate of public policy.” Turner v. Mem'l
Med. Ctr., 233 Ill.2d 494, 500, 331 Ill.Dec. 548 (2009). A plaintiff has the burden of proof to
demonstrate the employer’s motive in discharging the employee, and a defendant need not come
forward with an explanation for the discharge. Clemons v. Mech. Devices Co., 184 Ill.2d 328,
338-39 (1998). If the employer does show a valid, non-pretexual basis for the employee’s
discharge “and the trier of fact believes it, the causation element require[d] to be proven is not
met.” Id. at 336. The Illinois One Day Rest in Seven Act (“ODRISA”) is recognized by Illinois
courts as a clear mandate of public policy. See Carty v. Suter Co., Inc., 371 Ill. App. 3d 784, 788
(2007) (“[The] legislature has clearly mandated a public policy that certain employees have
statutory rights to 20–minute lunch breaks and that their employers have statutory obligations to
provide such breaks.”).
The parties agree that Plaintiff was discharged, and that the ODRISA provides a clear
mandate of public policy. Defendants assert that the claim fails as a matter of law because
Plaintiff cannot establish the second element—that her termination was in retaliation for her
IDOL complaint. As discussed above, Defendants have produced detailed documentation of
Castagnoli’s ongoing performance issues at The Center. Plaintiff’s disclosures include several
emails sent to her from her own personal email account that acknowledge that she was counseled
by Duethman and/or Assaf for the same issues memorialized in her personnel record. Plaintiff’s
response to Defendants’ motion for summary judgment states, as immaterial but undisputed fact:
¶32. Dr. Assaf made the decision on January 3, 2012 that Plaintiff’s employment
was to be terminated. Dr. Assaf made this decision after receiving a January 3,
2012 email from Plaintiff regarding billing not being processed for the month
of December 2011 because Medicare constituted about 55% of the insurance
spectrum, which is very significant. Dr. Assaf determined at this time Plaintiff

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had demonstrated an inability to process her work and report to her
supervisors.
¶33. Following his receipt of Plaintiff’s January 3, 2012 email and his decision to
terminate Plaintiff’s employment, Dr. Assaf consulted with [The Center’s] then
legal counsel and also made attempts to obtain from Plaintiff all of the emails
in her possession relating to the billing issues from December of 2011 prior to
notifying her of her termination on January 6, 2012. Plaintiff’s failure to
provide Dr. Assaf and Denise with the requested emails in a timely manner
only served to reinforce the decision made on January 3, 2012 to terminate
Plaintiff’s employment.
Plaintiff also alleges that when she was terminated on January 6, 2012, Dr. Assaf told her that
she “better not fight it.” From this alleged statement, Plaintiff argues, “it would be fair to infer . .
. that Dr. Assaf knew of Plaintiff’s complaint to the [IDOL]” because without any knowledge of
the complaint, “Dr. Assaf would have had no reason to threaten plaintiff and attempt to dissuade
her from fighting her termination.”
Plaintiff’s argument fails for multiple reasons. First, her own recitation of undisputed
facts plainly concedes that Dr. Assaf made the decision to terminate Castagnoli on January 3,
2012. Plaintiff’s a priori characterization of that fact as immaterial does not necessarily make it
so—rather, “[t]he substantive law will identify which facts are material.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Here, the issue is whether Plaintiff was terminated in
retaliation for filing her IDOL complaint. And in order for The Center’s termination of Plaintiff
to be retaliatory, The Center must have known of the underlying conduct giving rise to the
retaliation. Thus, Plaintiff’s own admissions show that Defendants’ decision to terminate
Plaintiff on January 3, 2012 occurred two days before the letter and/or phone call from the IDOL
was received by the office. See Def. Ex. B at 249. Therefore, there is simply nothing in the
record to support Plaintiff’s allegations that Defendants knew of the complaint with IDOL in
regard to retaliatory discharge. Even if Plaintiff’s argument could support the inference that
Defendants knew of the complaint before her termination, “mere temporal proximity between the
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filing of the charge of discrimination and the action alleged to have been taken in retaliation for
that filing will rarely be sufficient in and of itself to create a triable issue.” Stone v. City of
Indianapolis Pub. Utilities Div., 281 F.3d 640, 644 (7th Cir. 2002).
In order to bolster her retaliation claim, Plaintiff filed an affidavit with her response to the
motion for summary judgment. The unsworn affidavit states, “[d]uring my employment, I was
not spoken to or counseled about any alleged issue with my job performance by either
Defendant.” That statement is irreconcilable with Plaintiff’s deposition testimony, Plaintiff’s
emails to herself specifically referencing the instances when she was reprimanded, and portions
of Plaintiff’s response to the motion for summary judgment itself. “It is well settled in the
Seventh Circuit that a party cannot create an issue of material fact simply by creating a conflict
in his own testimony by submitting an affidavit that contradicts an earlier deposition.” Cent.
States, S.E. & S.W. Area Pension Fund v. Neiman, No. 99 C 1181, 2000 WL 310285, at *6 (N.D.
Ill. Mar. 24, 2000); see also Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 532 (7th Cir.
1999), Beck v. University of Wisconsin Board of Regents, 75 F.3d 1130, 1134 (7th Cir. 1996).
Defendants have supported their motion for summary judgment with specific facts
showing that The Center lacked knowledge of Castagnoli’s IDOL complaint at the time the
decision was made to terminate Plaintiff, and that significant reoccurring problems with
Plaintiff’s job performance led to her termination. Plaintiff’s unsupported allegation in her
affidavit that she gave verbal permission to the IDOL to contact The Center on January 5, 2012
directly contradicts her earlier testimony where she acknowledged that she checked the box on
the IDOL form indicating she wanted the complaint to be kept confidential. Plaintiff “may not
rest upon the mere allegations or denials of [Defendants’] pleading, but the adverse party's
response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts showing

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that there is a genuine issue for trial.” Marchman v. Advocate Bethany Hosp., 2006 WL 1987815
at *3-4 (N.D. Ill. 2006); Fed. R. Civ. P. 56(e). Here, Plaintiff has failed to do so. Castagnoli’s
affidavit and verbal representations are continually at conflict with the documentary evidence in
the record. As such, Defendants are entitled to a grant of summary judgment on the retaliatory
discharge in violation of Illinois public policy claim.
d) Plaintiff’s Claim for Retaliatory Discharge in violation of FLSA
Plaintiff’s final claim is for retaliatory discharge in violation of Section 215 of the Fair
Labor Standards Act, which states:
(a) After the expiration of one hundred and twenty days from June 25, 1938, it
shall be unlawful for any person . . . (3) to discharge or in any other manner
discriminate against any employee because such employee has filed any
complaint or instituted or caused to be instituted any proceeding under or related
to this chapter, or has testified or is about to testify in any such proceeding, or has
served or is about to serve on an industry committee . . .
29 U.S.C.A. § 215.
“A plaintiff in an employment retaliation case has two distinct approaches to prevent summary
judgment from being granted.” Cichon v. Exelon Generation Co., No. 02 C 3441, 2003 WL
22169761, at *4 (N.D. Ill. Sept. 18, 2003) aff'd sub nom. Cichon v. Exelon Generation Co., 401
F.3d 803 (7th Cir. 2005). Under the direct method of proof, a Plaintiff is required to present
direct evidence that she engaged in protected activity and suffered an adverse employment action
based on the employer’s retaliatory intent. Id. Under the indirect burden-shifting method of
proof, the employee must first present evidence sufficient to establish a prima facie case that his
employer retaliated against him in violation of a statute’s anti-retaliation provisions. If the
employee fails to establish any element of the prima facie case, the employer is entitled to
summary judgment. If, however, the employee succeeds in establishing a prima facie case, the
employer must offer a legitimate, non-invidious reason for the adverse employment action. If the
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employer can do so, the burden of production shifts back to the employee to demonstrate that the
employer’s justification was pretextual. If the employee fails to meet that burden, the retaliation
claim cannot survive summary judgment. Cichon at *4-5; see also Stone, 281 F.3d at 644;
McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
The direct method of proof requires Plaintiff to present direct evidence that she engaged
in protected activity and suffered an adverse employment action based on the employer’s
retaliatory intent. Cichon at *4-5. Plaintiff’s argument that the proximity between The Center
possibly learning about her complaint and her termination, together with Dr. Assaf’s ambiguous
statement “you better not fight this” is insufficient to show retaliation. This conclusion is
bolstered by Plaintiff’s own admission that Dr. Assaf made the decision to terminate Castagnoli
two days before The Center is alleged to have knowledge of the complaints. Because Plaintiff
has failed to show retaliatory intent, as discussed in the analysis of her previous public policy
claim, she cannot survive summary judgment for her FLSA claim under the direct method of
proof.
In order to establish a prima facie case of retaliation under the indirect method of proof,
Plaintiff must demonstrate that: (1) she engaged in a protected activity under the FLSA; (2) she
suffered an adverse employment action; and (3) there was a causal link between the two. Stutler
v. Illinois Dep't of Corr., 263 F.3d 698, 702 (7th Cir. 2001). Here, Plaintiff has established the
first and second elements of a prima facie case—she filed an IDOL complaint and her
employment was terminated. The third element, a causal link between the protected activity and
the adverse employment action, is perhaps less exacting than the “retaliation” requirement under
the direct method of proof or in Plaintiff’s other retaliatory discharge claim. Plaintiff concedes
that “only showing a short amount of time between the claims being filed and the adverse

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employment action is not usually enough to survive summary judgment,” but argues that an
inference of retaliation can be found in Assaf’s alleged “you better not fight this” statement. Yet
nothing in Assaf’s alleged statement indicates he knew of Plaintiff’s previous complaint, or that
she was terminated because of that complaint. Regardless, as discussed below, even if Plaintiff
met her burden of establishing a prima facie case, Defendants can establish a legitimate noninvidious reason for her termination.
Plaintiff’s performance issues have been well-documented by Defendants, dating back as
early as May of 2011 and continuing through her termination in January of 2012. Castagnoli’s
own emails to herself verify that Plaintiff’s performance issues stated in the office memoranda
were actually communicated to her by Assaf or Duethman. Plaintiff was terminated as a result
of: (1) Plaintiff’s hostile and behavioral work problems in dealing with The Center’s patients; (2)
Plaintiff’s abuse of company time and resources for her own personal issues; and (3) Plaintiff’s
failure to perform her billing duties, which Dr. Assaf determined was causing The Center
financial difficulties. Castagnoli stated in her retaliation complaint to the IDOL that these were
the grounds The Center communicated to her when she was terminated. Plaintiff was counseled
on six separate occasions in November 2011 alone in order to address multiple problems with
Castagnoli’s interactions with patients, erratic hours and abuse of company resources, and
significant errors and delays in billings. Thus, Defendants have met their burden of showing
legitimate, non-invidious reasons for Castagnoli’s termination.
Because Defendant’s have shown legitimate, non-invidious reasons for Plaintiff’s
termination, the burden shifts back to Castagnoli to show that the justifications were merely a
pretext. Cichon at *4-5; see also Stone, 281 F.3d at 644, McDonnell-Douglas Corp., 411 U.S. at
802-04. If she cannot do so, a grant of summary judgment is appropriate. Id. In her response,

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Plaintiff mistakenly places this burden on Defendants. (“Defendant has failed to show that their
stated reason for terminating Plaintiff was not a pretext by undisputed material facts.”).
Moreover, Plaintiff’s argument is especially weak because the majority of the documented
performance problems leading to Castagnoli’s termination occurred before Plaintiff ever filed
her IDOL complaint on December 11, 2011. And almost every instance relied upon by
Defendants for Castagnoli’s termination occurred before The Center had notice of the IDOL
complaint. “When an employee is disciplined for the same violation before filing a charge of
discrimination, this discipline ‘undermines the reasonableness of any inference’ that the charge
triggered any later discipline.” Hall v. Illinois Bell Tel. Co., 598 F. App'x 446, 448 (7th Cir.
2015) citing Argyropoulos v. City of Alton, 539 F.3d 724, 734 (7th Cir. 2008). Again, Plaintiff’s
claim that she was not counseled regarding these incidents is disingenuous and flatly
contradicted by Plaintiff’s own testimony and emails.
In conclusion, even if Plaintiff established a prima facie case of retaliation, Defendants
had legitimate, non-invidious justifications for her termination and Plaintiff offered no evidence
that those justifications were pretextual. Therefore, summary judgment in favor of defendants is
appropriate.
CONCLUSION
For the reasons set forth above, Defendants’ Motion for summary judgment [23] is
granted.
Entered this 23rd day of December, 2015

s/ James E. Shadid
James E. Shadid
Chief United States District Judge

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