Guzman et al v. Laredo Systems, Inc. et al.

Filing 286

MEMORANDUM OPINION and ORDER: Based upon the findings of fact and conclusions of law set forth in the accompanying Memorandum Opinion and Order, this Court finds in favor of Plaintiffs and against Defendants on Plaintiffs' FLSA claim (Count I), IMWL claim (Count II), and IPWA claim (Count III). The Court declines to award damages on Count III but awards damages on Counts I and II as follows: to Plaintiff Jaime Mercado, $39,115.41 (all on Count I); to Plaintiff Bernardo Mercado, $ 4,736.69 ($4,205.82 on Count I and $530.87 on Count II); to Plaintiff Celestino Mercado, $10,723.90 ($9,199.54 on Count I and $1,524.36 on Count II); to Plaintiff Jose Guzman, $14,368.33 ($12,523.21 on Count I and & #036;1,845.12 on Count II); and to Plaintiff Crisanto Pichardo, $9,950.68 ($8,413.18 on Count I and $1,537.50 on Count II), for a total award of $73,457.16 on Count I and $5,437.85 on Count II. The Court also awards reasonabl e attorneys' fees and costs of suit. See 29 U.S.C. § 216(b); 820 ILCS § 105/12. The Court directs the Clerk to enter judgment accordingly. Civil case terminated. Signed by the Honorable John Robert Blakey on 3/31/2022. Mailed notice (ags)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Jose Guzman, Jaime Mercado, Bernardo
Mercado, Crisanto Pichardo and Celestino
Mercado,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
Laredo Systems, Inc., Laredo Systems, LLC, )
and Enrique Jaime,
)
)
Defendants.
)

Case No. 10 CV 01499
Judge John Robert Blakey

MEMORANDUM OPINION AND ORDER
Plaintiffs Jose Guzman, Jaime Mercado, Bernardo Mercado, Crisanto
Pichardo, and Celestino Mercado sued their former employer, Laredo Systems, Inc.,
and its owner, Enrique Jaime, Sr., for violations of the Fair Labor Standards Act, the
Illinois Minimum Wage Law, and the Illinois Prevailing Wage Act. After summary
judgment proceedings resolved the question of liability, and after Defendant Jaime
emerged from bankruptcy, the Court conducted a bench trial on June 28 and 29, 2021
to address damages. In accordance with Federal Rule of Civil Procedure 52(a), this
Memorandum Opinion and Order reflects the Court’s Findings of Fact and
Conclusions of Law on the relevant issues of the case.
I.

Background & Procedural History
Defendant Laredo Systems, Inc. (known as Laredo Systems, LLC at least by

October of 2012) operates as a landscaping business in Garden Prairie, Illinois.
Defendant Enrique Jamie serves as Laredo’s president and runs the company.
1

During the relevant time, most of Laredo’s work consisted of subcontractor work on
public works projects along expressways and tollways in the Chicago area.
Plaintiffs Jose Guzman, Jaime Mercado, Bernardo Mercado, Crisanto
Pichardo, and Celestino Mercado worked as landscapers for Laredo. Defendants paid
Plaintiffs Jose Guzman, Celestino Mercado, Bernardo Mercado, and Crisanto
Pichardo a flat rate of $80.00 per workday and paid Plaintiff Jaime Mercado a higher
rate of $120.00 per workday. 1
On March 5, 2010, Plaintiffs sued Laredo and Enrique Jaime, claiming that
their flat rates of pay failed to cover overtime compensation, in violation of the Fair
Labor Standards Act (Count I); failed to compensate Plaintiffs for all hours worked,
in violation of the Illinois Minimum Wage Law (Count II); and fell short of the
“prevailing wage” for work Plaintiffs performed on public works projects, in violation
of the Illinois Prevailing Wage Act (Count III).
Plaintiffs moved for summary judgment on the issue of liability, and thenpresiding Judge Manning granted summary judgment in Plaintiffs’ favor and against
Defendants on all three counts. See [111]. Judge Manning determined that Plaintiffs
established that Defendants required them to report to Laredo’s headquarters in
Garden Prairie by 6:30 a.m. each workday, where Enrique Jaime assigned their
worksites for the day. Plaintiffs would gather their tools and equipment from the
Laredo paid Jaime Mercado a higher rate because he drove the other employees to Laredo’s shop and
to the worksites. The actual amount paid to Mercado, however, vacillates in the record. Based upon
the record before her on summary judgment, Judge Manning found that Laredo paid Mercado $130
per day, and this remains consistent with the parties’ prior representations, here; in fact, in their
proposed pretrial order, the parties stipulated that Laredo paid Mercado $130 per day, [266] at 8, ¶
45. At trial, however, the parties stipulated that Laredo paid Mercado $120 per day, and so the Court
finds, for purposes of calculating damages, that Mercado’s flat daily rate was $120.
1

2

shop, then be transported to those worksites. At the end of the workday, they would
travel back to Laredo’s shop before going home. Plaintiffs argued that Defendants
should have paid them for the entire workday, including travel time, while
Defendants countered that Plaintiffs were entitled to pay only for the (approximately)
six hours they spent on the worksites each day. Judge Manning sided with Plaintiffs,
finding that, because Plaintiffs received their assignments at the shop and gathered
their tools there before being transported to the worksites, federal law required
Defendants to pay them for the time they spent traveling to and from those sites.
Judge Manning thus determined that Plaintiffs effectively worked 11- or 12-hour
days, and accordingly that the $80.00 flat daily rate fell below the applicable federal
and state minimum wages, as well as the “prevailing wage” established for public
works projects under the Illinois Prevailing Wage Act.

She found that Jaime

Mercado’s $130 flat daily rate violated the FLSA and the Illinois Prevailing Wage Act
but satisfied the Illinois Minimum Wage Act. She thus entered judgment in favor of
all Plaintiffs on their FLSA and Prevailing Wage Act claims and in favor of all
Plaintiffs except Jaime Mercado on their IMWL claim.
In addition, Judge Manning determined that Defendant Enrique Jamie’s
admission that he was president and in charge of Laredo Systems made him an
“employer” under the FLSA, subjecting him to personal liability. [111] at 1 n.1. Judge
Manning did not address damages, as Plaintiffs sought judgment on liability alone.
After Judge Manning granted summary judgment to Plaintiffs on the issue of
liability, she sent the parties to the assigned Magistrate Judge for a settlement

3

conference. 2 Before the conference could take place, however, Defendants advised
that they had no interest in participating, and so the Magistrate Judge returned the
case to the District Judge. See [127].
Meanwhile, in December of 2012, Judge Manning took inactive status, and the
case was reassigned to Judge Shadur, who, on February 14, 2013, entered an order
on Plaintiff’s interim petition for fees and costs, [130], awarding Plaintiffs
$167,862.50 in fees and $11,890.52 in nontaxable expenses, [131]. Judge Shadur then
set the matter for trial in November 2014. See [147]. But three days before the trial,
Defendant Enrique Jaime filed for bankruptcy, automatically staying the case.
Despite the stay, when issues arose about the legitimacy of Enrique Jaime’s
businesses, Judge Shadur issued an order January 18, 2017, finding that Jaime was
“fully responsible” for the full amount of the interim award of fees and costs. [195].
When Judge Shadur retired on August 28, 2017, the case was reassigned to
Judge St. Eve, see [204], who continued the stay pending Jaime’s bankruptcy. The
case was reassigned yet again to this Court when Judge St. Eve was elevated to the
Court of Appeals, see [216].
After the automatic bankruptcy stay was lifted on July 30, 2018, this Court
recruited counsel for Defendants, see [231], and set the case for trial. After resetting
the matter numerous times at the parties’ request and because of the COVID-19
public health crisis, the Court conducted a bench trial on damages on June 28 and
29, 2021.
The parties had attempted to settle this matter once before, on March 15, 2012, but they were
unsuccessful. See [86].
2

4

II.

Trial
At trial, Plaintiffs presented evidence to buttress Judge Manning’s ruling on

liability and to prove the amount of their damages. Plaintiff Jaime Mercado testified
that he worked as a landscaper for Laredo from August 2005 until December of 2009
and that he also served as a driver. [274] at 16–17. Jamie Mercado testified that
Laredo paid him a flat daily rate of $100 in 2005 and the first part of 2006; $110 from
May 2006 to 2007; and $120 from early 2007 through December of 2009. Id. at 24.
Jaime Mercado testified that he arrived at Laredo’s shop each day by 6:00 a.m. and
returned to the shop at 6:00 or 7:00 p.m., except on Saturdays, when he returned to
the shop by 4:00 p.m. Id. at 17, 19. Mercado testified that he did not receive any type
of overtime compensation for working more than eight hours in a workday or working
more than 40 hours in a workweek, id. at 25; he also testified that, on days when he
could not work because of rain, Laredo did not pay him, id. at 20.
Plaintiff Bernardo Mercado testified that he worked for Laredo for just one
season, 3 from March of 2008 to December of 2008; he testified that he worked five or
six days a week from about 6:00 a.m. to about 6:00 or 7:00 p.m. Id. at 51–52, 54.
When asked how many hours he worked each workday, Bernardo Mercado said,
“between 11 and 12.” Id. at 57. He could not recall how many Saturdays he worked,
but he testified that, when he worked on Saturdays, he worked until just 4:00 p.m.
Id. at 54. He also testified that he worked one Sunday at Laredo, and also worked at
Enrique Jaime’s personal residence (referred to as the “farm”) on two occasions. Id.
Based upon the record, the term “season” refers to the time of year, sandwiched by spring and early
winter, when outdoor landscaping work is necessary and feasible in Illinois.

3

5

at 55. Bernardo Mercado testified that Laredo paid him once a week at a flat rate of
$80 per day; he did not receive overtime. Id. at 57–58.
Plaintiff Celestino Mercado testified that he worked for Laredo during the 2008
and 2009 seasons, from roughly March to December each year; he worked five to six
days a week, arriving at 6:00 a.m. and leaving for the day between 6:00 and 7:00 p.m.
[274] at 72–73, 75. He testified that, when he worked Saturdays, he finished work
around 3:00 or 4:00 p.m. Id. at 75. He testified that he worked a Sunday “every once
in a while.” [275] at 14. He testified that he also worked at Enrique Jaime’s farm on
three or four occasions. [274] at 76. Celestino Mercado testified that Laredo paid
him once a week at a flat rate of $80 per day; he did not receive overtime. Id. at 78.
Plaintiff Jose Guzman testified (via deposition testimony jointly designated by
the parties and admitted by agreement at trial, [275] at 103), that he worked for
Laredo from September 2007 to December 2007 and again during the 2008 and 2009
seasons, through December 16, 2009. Guzman Dep., pp. 7–8, 17. Guzman testified
that he made $80 a day, id. at 10. He testified that he also worked at Enrique Jaime’s
farm for three days in the 2007 season, for five to six weeks in the 2008 season, and
for about one week in the 2009 season. Id. at 15. Guzman testified that he worked
seven days “maybe one time at most,” id. at 22; the other weeks, he worked five or six
days. Id. He testified that he started work at 6:00 a.m. and would leave work “around
6:00, 6:30, 7:00, sometimes later than that.” Id. Guzman testified that he did not
receive overtime pay. Id. at 18.

6

Crisanto Pichardo testified (via deposition testimony jointly designated by the
parties and admitted by agreement at trial, [275] at 103) that he worked as a
landscaper for Laredo beginning April 27, 2005, and worked the 2005, 2007, and 2008
seasons (he did not work during 2006 because of a family situation). Pichardo Dep.,
pp. 13, 17, 15. Pichardo testified that he made $80 a day and generally worked six
days a week from April to November, beginning around 6:00 a.m. each day.

Id. at

14, 17. Pichardo also testified that he sometimes worked at Enrique Jaime’s farm,
id. at 23; in 2007 he worked there “sometimes two days a week, sometimes not all the
time,” id. at 26; in 2009 he worked there sometimes but “most of the time” he worked
“by Glenview, 294.” Id. He did not work on the farm in 2008. Id.
Enrique Jaime, Jr. also testified (via deposition testimony jointly designated
by the parties and admitted by agreement at trial, [275] at 103). Jamie, Jr., who is
not a plaintiff but is Defendant Jaime’s son, testified that he worked alongside
Plaintiffs during the 2005 to 2009 time period. Jaime, Jr. Dep., p. 9. Jaime, Jr.’s
testimony confirms what Plaintiffs said: that employees would report to Laredo
“anywhere between 6:00 to 7:00 a.m., depending on what time of year it was” and
what time the sun came up; that the jobs would end about 4:30 p.m.; and that
employees would be back at Laredo an hour or two later. Id. at 10–11, 15. Jaime, Jr.
similarly testified that he did not receive overtime for any hours in excess of 40, id.
at 41, but he also testified that he was paid “a salary” of $125 or $130 a day. Id. at
22, 40.

7

Finally, Plaintiffs called Defendant Enrique Jaime. Jamie testified that most
of Laredo’s work was prevailing wage work, and that Laredo received its landscaping
work through bidding on the landscaping portion of such jobs. [275] at 45. Enrique
Jaime testified that he required his employees to come to the Laredo shop before work
to collect tools and equipment, and he required them to leave the shop by 7:00 a.m.
to get to the worksites. Id. at 45–46. He testified that he generally decided which
employees would work on which crew and which worksite. Id. at 44–45. He testified
that Laredo employees did not punch a time clock but were paid based upon a “daily
salary that we agreed on.” Id. at 47. He testified that all Plaintiffs were paid $80 a
day, except Jaime Mercado, who received a higher rate because he was a driver and
would drive employees to the worksites, sometimes as far as 70 or 80 miles away, and
then back to the shop, usually by about 5:30 p.m. Id. at 47–48. Jaime testified that
if his employees did not work, they did not get paid, and if they worked a half-day,
they received a half-day’s pay. Id. at 50.
Defendant Jaime admitted that he was aware that Illinois had a minimum
wage law, that the law required him to pay overtime for hours worked in excess of 40
hours in a workweek, and that prevailing wage jobs for governmental work required
the payment of prevailing wages to workers on those jobs. Id. at 49–50, 53. Jaime
testified that, for the majority of “state jobs,” he was required as a subcontractor to
submit certified payrolls to the general contractor. Id. at 50. And he testified that,
when he prepared such records, rather than using exact hours information, he used
an estimate of six hours per day, based upon his experience of what the day looked

8

like for the landscapers he hired. Id. at 52. Jaime also testified that none of the
Plaintiffs belonged to the union, id. at 22; he testified that he did not pay prevailing
wages, did not pay anything for employees’ health insurance, did not contribute
toward employee pensions, and did not provide vacation or paid time off, id. at 54. In
his view, he did not believe he was required to do so. Id. at 56.
With regard to the paychecks Laredo issued to Plaintiffs, Enrique Jaime
testified that those records accurately reflect the time periods during which Laredo
employed each Plaintiff. Id. at 62. He also testified that, for payroll purposes each
week, he kept track of who worked what days and at which worksites, but he threw
those records out after the paychecks were cut for that week. Id. at 63–64. Jaime
testified that he did not pay Plaintiffs at the prevailing wage rates because they
agreed to work for a daily salary; he also indicated that if he had bid for jobs based
upon prevailing wage rates, Laredo would never have been awarded contracts and
neither he nor Plaintiffs would have been able to work. Id. at 66–67. He testified
that other landscapers similarly fail to pay prevailing wages for such projects. Id. at
119. Jaime testified that Laredo worked on approximately five State of Illinois/Toll
Authority jobs per year. Id. at 116–17.
In addition to the testimony, the parties stipulated to various facts. See [266]
at 6–11; [275] at 42 (admitting stipulation 98 into evidence), 100 (admitting
stipulations 1 through 95, 97, and 99 into evidence). They stipulated that Plaintiffs
were required to arrive for work at Laredo’s Garden Prairie facility by 6:30 a.m. and
arrive back to Garden Prairie around 5:30 p.m. Factual Stipulation 22; [266] at 6, ¶

9

25. 4 They stipulated that Plaintiffs could travel as far as 70 to 80 miles to their
worksites and would work at those sites until around 4:30 p.m. before driving back
to Laredo’s shop. Factual Stipulations 29, 32; [266] at 7. ¶¶ 32, 35. The parties
stipulated that Plaintiff Jose Guzman worked for Laredo from September of 2007
until the end of the 2009 season; that Plaintiff Celestine Mercado worked for Laredo
from March of 2008 until the end of the 2009 season; that Plaintiff Jaime Mercado
worked for Laredo from November of 2005 until the end of the 2009 season; that
Plaintiff Bernardo Mercado worked for Laredo from March of 2008 to December 2008;
and that Plaintiff Crisanto Pichardo worked for Laredo during the 2005, 2007, 2008,
and 2009 seasons. Factual Stipulations 17–21; [266] at 6, ¶¶ 20–24. They stipulated
that, throughout the relevant time period, Laredo paid Bernardo Mercado, Celestino
Mercado, Crisanto Pichardo, and Jose Guzman $80 per day and paid Jaime Mercado
$120 per day. Factual Stipulations 40–42; [266] at 8, ¶¶ 44–45.
The parties stipulated that at all times relevant, Defendant Enrique Jaime
was the sole owner of the sole proprietorship Laredo Systems. Factual Stipulation
98. And they stipulated to the minimum wage rates in Illinois during the relevant
time period. Finally, they stipulated to the various prevailing wage rates that applied
in the Chicagoland area during the relevant time period, but they did not offer any

Because this was a bench trial, counsel did not read the stipulations into the record, but simply
moved for the joint admission of a signed copy of the parties’ stipulations. [275] at 100. The signed
version admitted at trial is similar, but not identical to the stipulations submitted with the parties’
proposed pretrial order [266], which appears on the record. Where the stipulations are substantively
the same, the Court thus references both the stipulations admitted at trial and the full versions
included in the parties’ proposed pretrial order, [266].

4

10

stipulation about what specific prevailing wage rate applies to what specific jobs or
hours.
III.

Discussion & Analysis
A.

Factual Findings 5

Based upon the evidence at trial, including the parties’ stipulations and the
Court’s own observations of the testimony and credibility assessments, this Court
makes the following findings of fact:
•

Plaintiff Jose Guzman worked for Defendants, on a seasonal basis, from
September of 2007 until the end of the 2009 season, earning a flat daily rate of
$80;

•

Plaintiff Celestine Mercado worked for Defendants during the 2008 and 2009
seasons, earning a flat daily rate of $80;

•

Plaintiff Jaime Mercado worked for Defendants, on a seasonal basis, from
August of 2005 until the end of the 2009 season, earning a flat daily rate of
$120; 6

•

Plaintiff Bernardo Mercado worked for Defendants, on a seasonal basis, from
March of 2008 to December 2008, earning a flat daily rate of $80; and

•

Plaintiff Crisanto Pichardo worked for Defendants during the 2005, 2007,
2008, and 2009 seasons, earning a flat daily rate of $80.
Additionally, the Court finds that, as a general rule, Plaintiffs worked 11 hours

each day, arriving to Laredo Systems’ headquarters in Garden Prairie by
approximately 6:30 a.m. and returning between 5:30 and 7:00 p.m. At headquarters,
Plaintiffs received their work assignments, gathered their tools and equipment,

As needed, this Court also makes additional factual findings in its substantive discussion of Plaintiffs’
claims, below. See infra §§ III(B), (C).

5

Jaime Mercado testified that he received a lower daily rate in the years before 2007, [274] at 24. But,
in light of the statute of limitations (discussed below), those lower rates remain irrelevant to any
damages calculation.

6

11

loading it into company vehicles, and then drove to their assigned worksites, often
traveling as far as 70–80 miles and as much as an hour or two to get from Laredo
headquarters to the various worksites. Once at their worksites, Plaintiffs performed
landscaping work until about 4:30 p.m., taking one half-hour lunch break each day.
At the end of the workday, Plaintiffs packed up their tools, equipment, and
trash/clippings, and drove back to Laredo’s headquarters in Garden Prairie, where
they would unload their trucks before leaving for home, typically between 5:30 and
7:00 p.m.

Weather permitting, Plaintiffs worked 5 to 6 days per week on this

schedule, except on Saturdays, when they returned to Laredo’s headquarters by 3:30
or 4:00 p.m.
Enrique Jaime kept track of the number of days each Plaintiff worked each
week. And, in calculating Plaintiffs’ pay each week, Jaime simply multiplied the
number of days that each employee worked during the pay period by the particular
employee’s daily rate. When the weather precluded landscaping work, Plaintiffs did
not work and did not get paid.

On days when the weather turned south after

Plaintiffs were on the job, they typically worked a half day and received a half-day’s
pay equal to half their daily rate.
Defendants did not pay Plaintiffs for travel or overtime; nor did Defendants
pay Plaintiffs enhanced wages for working Saturdays, Sundays, and holidays.
Defendants did not provide health insurance or benefits to Plaintiffs. Defendants did
not withhold federal or state income taxes from Plaintiffs’ paychecks; nor did

12

Defendants withhold Social Security or Medicare contributions. Plaintiffs received
no W-2 Forms or 1099 Forms from Laredo.
Plaintiffs did not punch a time clock, and Defendants did not keep exact
records of the hours each employee worked each day or week; nor did Defendants
track any overtime. Defendants did track the number of days each Plaintiff worked,
and paid Plaintiffs for each day using the agreed-upon flat daily rates. The only
documents Defendants retained were the paychecks Laredo issued to Plaintiffs.
Similarly, the only documents Plaintiffs received from Laredo were their paychecks,
which (using simple division by the applicable daily rate) accurately reflect the
number of days (though not the number of hours) each Plaintiff worked each week.
The Court finds that Plaintiffs’ Group Exhibits 5, 6, 7, 8, and 9 accurately reflect the
hours worked by each Plaintiff.
For the most part, Plaintiffs worked on landscaping jobs near the highways in
northern Illinois. In total, about 10% of Plaintiffs’ work was performed at Enrique
Jaime’s farm in Durand, Illinois. Jamie Mercado, Bernardo Mercado, and Celestino
Mercado each worked at Jaime’s farm for less than a handful of days during their
employment with Laredo: Jaime Mercado worked there four days in his five years of
employment; Bernardo worked there twice; and Celestino worked there three or four
days in over four years of employment.

Plaintiffs Crisanto Pichardo and Jose

Guzman worked at the farm more often: in 2007, Crisanto Pichardo sometimes
worked two days a week, nine hours a day, at the farm; and Jose Guzman worked at

13

the farm for three days in 2007, for five to six weeks in 2008, and for about a week in
2009. None of the work at the farm was prevailing wage work.
The other 90% of Plaintiffs’ work occurred in and around highways, and most
of this highway work was performed in connection with public works projects falling
within the Illinois Prevailing Wage Act. See Factual Stipulation 7 (about 5% of
Laredo’s work was for the Illinois Department of Transportation). For those jobs,
Laredo would have been hired as a subcontractor by a union general contractor and
all employees were required to be union employees.

Yet none of the Plaintiffs

belonged to the union. As a subcontractor on public works projects, Enrique Jaime
was required to submit certified payrolls to the contractors, to show the number of
hours worked by employees. Enrique Jaime personally created the certified payroll
reports, creating social security numbers for Plaintiffs when necessary and
approximating their hours at each jobsite. These certified payroll statements, though
admittedly inaccurate in several respects, constitute the only records of Plaintiffs’
work at Laredo. The records reflect fake social security numbers and addresses,
inflated wage rates, and undervalued hours reports. But they do constitute a clear
approximation of the number of days worked by each Plaintiff. Using the number of
days included on the certified payroll records, therefore, the Court can reasonably
approximate Plaintiffs’ minimum wage and overtime damages by multiplying the
number of days by 11 hours (the average workday). In this regard, the Court simply
applies the parties’ agreed upon minimum wage rates for the first 40 hours worked
each week and 1.5 times those rates for any hours worked over 40. Such damages

14

are readily discernible, and Plaintiffs’ Group Exhibits 5, 6, 7, 8, and 9, admitted at
trial without objection, demonstrate a fair and accurate estimate of Plaintiffs’
damages under the Illinois Minimum Wage Law and the Fair Labor Standards Act.
The calculation of damages under the Prevailing Wage Act requires one
additional step: the determination of the applicable prevailing wage rate. Whereas
there is a single applicable minimum wage rate, the prevailing wage rate is set by
the Department of Labor and depends upon a number of factors, including the county
and the month in which the work is performed. Although the parties generally agree
on what rates applied during the relevant time period, they have not agreed on the
specific rates to be applied to specific jobs or hours; nor have they offered a stipulation
concerning the county-by-county locations of the jobs Plaintiffs worked. Plaintiffs’
Group Exhibits 5, 6, 7, 8, and 9 reflect Plaintiffs’ best estimate concerning the
applicable prevailing wage rates and their prevailing wage damages.
B.

Plaintiffs’ FLSA & IMWL Claims

Enrique Jaime is an “employer” within the meaning of the Fair Labor
Standards Act, the Minimum Wage Law, and the Prevailing Wage Act. Factual
Stipulations 13–15; [266] at 6, ¶¶ 16–18. Additionally, Plaintiffs are “employees”
within the meaning of the Fair Labor Standards Act, the Minimum Wage Law, and
the Prevailing Wage Act. Factual Stipulations 10–12; [266] at 6, ¶¶ 13–15. The
decisions entered in this case to date establish that all operations of Enrique Jaime’s
landscaping business were conducted by him as a sole proprietorship doing business

15

as “Laredo Systems.” 7 Thus, consistent with Judge Shadur’s prior ruling, [196],
Enrique Jaime personally remains fully responsible for Plaintiffs’ damages.
Under the Fair Labor Standards Act, an employer must pay its employee
overtime wages (150% of the employee’s hourly wage) for each hour worked in excess
of forty hours a week. 29 U.S.C. § 207(a)(1); Hicks v. Avery Drei, LLC, 654 F.3d 739,
745 (7th Cir. 2011). The Illinois Minimum Wage Law provides the same overtime
wage protections to hourly workers as the FLSA. See 820 ILCS § 105/4a. As a result
of their common purpose and similar language, the two statutes generally require the
same analysis. See Driver v. AppleIllinois, LLC, 917 F.Supp.2d 793, 798 (N.D. Ill.
2013) (citing Condo v. Sysco Corp., 1 F.3d 599, 601 n.3, 605 (7th Cir. 1993)).
To prevail on their FLSA and IMWL claims, Plaintiffs must prove that: (1) they
worked overtime without compensation; and (2) Enrique Jaime knew or should have
known of the overtime work. See Kellar v. Summit Seating Inc., 664 F.3d 169, 176–
77 (7th Cir. 2011); 29 C.F.R. § 785.11.
As to the latter, Plaintiffs have met their burden. The evidence shows that
Jaime met Plaintiffs at the shop each morning to assign jobs, prepared Laredo’s
certified payroll records, and cut Plaintiffs’ paychecks. The parties stipulated that
Jaime recorded six hours per employee per workday because he “only counted the
time an employee had a shovel in his hand as work time.” Factual Stipulation 63;
[266] at 9, ¶ 66. But the time Plaintiffs spent receiving instructions, gathering their

The parties also stipulated that from 2005 to the present, Enrique Jaime was the sole owner of the
sole proprietorship Laredo Systems. See [275] at 41–42 (factual stipulation 98 published and
admitted); [266] at 5, ¶ 4.
7

16

required tools, and traveling to the job site was also compensable, as was the time
Plaintiffs spent traveling back to the shop after work; indeed, the parties stipulated
to this fact as well. Factual Stipulation 97; [266] at 11, ¶¶ 100, 101. Jaime testified
at trial that he required Plaintiffs to come to the shop first and then leave for their
worksites by 7:00 a.m. [275] at 130–32. He also testified that the work crews usually
got back to the shop around 5:30 p.m. Id. at 134. This evidence and testimony shows
that Jaime knew Plaintiffs were logging 10.5 to 11 hours each day. Additionally, the
parties stipulated that Enrique Jaime was aware that the law required him to pay
his employees a minimum wage and overtime for hours worked in excess of 40 in a
workweek. Factual Stipulations 45, 46; [266] at 8, ¶¶ 48, 49.
Plaintiffs have also proved that they worked overtime without compensation.
To be sure, an employee bears the burden of proving that he performed overtime work
for which he was not properly compensated, e.g., Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680, 686–87 (1946), superseded by statute on other grounds as stated in IBP,
Inc. v. Alvarez, 546 U.S. 21, 41 (2005); Brown v. Fam. Dollar Stores of IN, LP, 534
F.3d 593, 594 (7th Cir. 2008). But Laredo’s compliance with the FLSA’s standards
for keeping accurate records determines the burden of proof Plaintiffs must bear in
establishing the number of overtime hours they worked. Blakes v. Illinois Bell Tel.
Co., 75 F. Supp. 3d 792, 806–07 (N.D. Ill. 2014) (citing 29 U.S.C. § 211(c); Brennan v.
Qwest Commc’ns Int’l, Inc., 727 F. Supp. 2d 751, 762 (D. Minn. 2010)).
The FLSA requires covered employers to “make, keep, and preserve such
records of the persons employed by [it] and of the wages, hours, and other conditions

17

and practices of employment maintained by him[.]” 29 U.S.C. § 211(c). If Laredo’s
records are inadequate under the above standard and their inaccuracy makes it
difficult for the named plaintiffs to prove damages, the named plaintiffs can meet
their burden by showing the amount and extent of the unpaid work they performed
“as a matter of just and reasonable inference.” Blakes, 75 F. Supp. 3d at 807 (quoting
Anderson, 328 U.S. at 687; Brown, 534 F.3d at 595). The burden then shifts to
Defendants to produce either evidence of the precise amount of work performed or
evidence to negate the reasonableness of the inference to be drawn from the
employee’s evidence. Id. (citing Anderson, 328 U.S. at 687–88). If, on the other hand,
Laredo’s records are adequate under the FLSA’s standards, then the accurate time
records will establish the amount of damages and the general rule precluding
recovery of uncertain or speculative damages applies. Id. (citing Schremp v. Langlade
Cnty., No. 11 CV 591, 2012 WL 3113177, at *3 (E.D. Wis. July 31, 2012); Brown, 534
F.3d at 595.
Based upon the evidence and testimony at trial, the Court finds that Laredo’s
records fall short of compliance and are, in relevant ways, inaccurate and unreliable.
For example, they contain false social security numbers, addresses, and union
affiliations, inflated wages, and under-reported hours. Enrique Jaime admits that
he created them based upon estimates and guesses of time spent on the job sites, and
that they do not reflect travel time or time spent loading and unloading equipment
at the beginning and end of a shift. As a factual matter, therefore, this Court finds
that the record triggers Anderson’s “just and reasonable inference” standard.

18

Even

though

the

certified

payroll

records

lack

certain

indicia

of

trustworthiness on a variety of issues, the parties all agree that they accurately
reflect the number of days each Plaintiff worked; everyone also agrees that the
paychecks admitted into evidence accurately reflect the amount of money paid to each
employee based upon the agreed-upon daily rate, multiplied by the number of days
each employee actually worked that week. Using simple division, therefore, the
paychecks accurately demonstrate the number of days each employee worked in a
given week, corroborating the certified payroll records.
Such

evidence,

coupled

with

the

trial

testimony

and

stipulations

demonstrating that employees were required to arrive at the shop by 6:30 a.m.,
traveled an hour or two to the jobsite, worked approximately six hours at the jobsite,
left the jobsite around 4:30 p.m. to return to the shop, and that they generally worked
five or six days a week, allows the Court, using the paystubs and time records
(admitted at trial without objection), to determine a fair and accurate approximation
of the hours omitted from the time records and the unpaid compensation. In short,
Plaintiffs have demonstrated the amount and extent of the unpaid work they
performed “as a matter of just and reasonable inference,” thus demonstrating their
entitlement to damages on their FLSA and IMWL claims.
Before turning to the specific damage amounts, the Court first observes that
damages are appropriate for work performed in the three years leading up to the
filing of the complaint, from March 5, 2007, through March 5, 2010. Based upon the
evidence, this Court finds that Laredo’s failure to pay was willful, and the three-year

19

statute of limitations thus applies. E.g., Howard v. City of Springfield, Illinois, 274
F.3d 1141, 1144 (7th Cir. 2001) (the statute of limitations for FLSA violations is two
years unless the violation was willful, in which case the limitations period is three
years); House v. Illinois Bell Tel. Co., No. 15 C 2718, 2016 WL 757980, at *2 (N.D. Ill.
Feb. 26, 2016) (the IMWL carries a three-year statute of limitations for private
actions); 820 ILCS 105/12(a) (effective 7/14/06 to 2/18/19).
Additionally, because Defendant Jaime raised the issue in his testimony, the
Court notes that, to the extent any Plaintiff agreed to work for less than the minimum
wage, such agreements are void. E.g., Jewell Ridge Coal Corp. v. Loc. No. 6167,
United Mine Workers of Am., 325 U.S. 161, 167 (1945) (“The Fair Labor Standards
Act was not designed to codify or perpetuate those customs and contracts which allow
an employer to claim all of an employee’s time while compensating him for only a part
of it. Congress intended, instead, to achieve a uniform national policy of guaranteeing
compensation for all work or employment engaged in by employees covered by the
Act. Any custom or contract falling short of that basic policy, like an agreement to
pay less than the minimum wage requirements, cannot be utilized to deprive
employees of their statutory rights.”); Lewis v. Giordano’s Enters., Inc., 921 N.E.2d
740, 745 (Ill. Ct. App. 2009) (“an agreement by an employee to accept less than
minimum wage is void as a matter of law”).
In calculating minimum wage damages, the Court applies the stipulated
minimum wage rates: $7.50 per hour from the beginning of the statute of limitations
period (March 5, 2007) through June 30, 2008; $7.75 per hour from July 1, 2008

20

through June 30, 2009; and $8.00 per hour from July 1, 2009 through the filing of the
complaint (March 5, 2010). See Factual Stipulations 93–95; [266] at 11, ¶¶ 97–99.
Multiplying the number of days worked by 11 provides a reasonable estimate
of the number of hours worked each week, which in turn allows the Court (applying
the stipulated minimum wage rates) to calculate what Plaintiffs should have been
paid. Based upon the factual record, the Court then (1) compares what Plaintiffs
should have been paid with what the paychecks show they were paid; and (2)
calculates damages for unpaid overtime. In so doing, the Court reasonably infers that
each workday constituted an 11-hour shift.
With regard to the number of hours worked each day and each week, the
testimony was consistent: Plaintiff Jaime Mercado testified that he arrived at the
shop each day by 6:00 a.m. and returned to the shop at 6:00 or 7:00 p.m., except on
Saturdays, when he worked just until 4:00 .m. [274] at 17, 19. Bernardo Mercado
testified that he worked between 11 and 12 hours a day five or six days a week. Id.
at 51–52, 54, 57. Celestino Mercado testified that he worked five to six days a week,
arriving at 6:00 a.m. and leaving for the day between 6:00 and 7:00 p.m. [274] at 72–
73, 75. And Defendant Enrique Jaime testified that he required Plaintiffs to leave
the shop by 7:00 a.m. for their jobsites, and that they usually returned to the shop
about 5:30 p.m.. [275] at 130–32, 134. Additionally, Plaintiffs and Defendant Jaime
testified that Plaintiffs’ paychecks accurately reflect the amount of money they
received each week, and that dividing the amount paid by the employee’s flat rate
would yield the number of days worked for each employee. To calculate the actual

21

damages owed each Plaintiff, the Court credits the Plaintiffs’ paychecks to determine
the number of days worked during each pay period, and then applies the relevant
rate (either the minimum wage rate or the overtime rate) based upon an 11-hour
workday.
Similarly, knowing the number of hours worked and the amount paid, the
Court can and does calculate any minimum wage deficiencies. The unpaid minimum
wages are easily calculated using the payroll records and paychecks in evidence. By
paying a flat rate of $80 per day for each 11-hour day, Enrique Jaime paid Plaintiffs
Jose Guzman, Bernardo Mercado, Celestino Mercado, and Crisanto Pichardo, just
$7.28 per hour, which is less than the minimum wage. 8 As a result, this Court finds
that these Plaintiffs may recover the amount of any such underpayments, together
with costs and such reasonable attorney’s fees, as well as 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.
Take for example Bernardo Mercado, who worked for Laredo for just one
season, the 2008 season. Group Exhibit 2, admitted without objection, includes all of
the paychecks Laredo issued to Bernardo Mercado. The first check, issued on March
21, 2008, shows that Laredo paid Mercado $320.00. Group Exhibit 2 at Bates No.
0837. Because the evidence shows that Laredo paid Mercado a flat rate of $80 per
day, the record allows the Court to reasonably infer that Mercado worked four days
that week. Consistent with Judge Manning’s findings and the evidence at trial, the
Jaime Mercado’s daily rate of $120 exceeds the minimum wage rates for the applicable years. As
discussed below, however, this Plaintiff remains entitled to overtime wages under the FLSA.
8

22

Court also reasonably infers that Mercado worked 11 hours in each of those four days,
for a total of 44 hours. Thus, Laredo paid Mercado $7.27 per hour for all 44 hours,
when it should have paid him $7.50 per hour for all regular hours, and $11.25 per
hour for all overtime hours. As demonstrated on Group Exhibit 7, also admitted
without objection, Mercado’s unpaid minimum wage was $10.00 (at $7.50, he would
have earned $330.00, but instead earned $320.00), and his unpaid overtime is $45.00
($11.25 per hour for the four hours he worked in excess of 40). Using the paychecks
in Group Exhibit 2, the Court thus finds, as demonstrated on Plaintiffs’ Group
Exhibit 7, that Mercado’s total unpaid minimum wage damages are $530.87, and his
total unpaid overtime damages are $4,205.82. See Plaintiffs’ Group Ex. 7 at line 40,
col. J, M.
Using the paychecks in this manner to determine unpaid minimum wages and
overtime damages, the Court makes the following findings of fact:
•

Plaintiff Jose Guzman’s total unpaid minimum wage damages are $1,845.12,
and his total unpaid overtime damages are $12,523.21, see Group Ex. 1;
Plaintiffs’ Group Ex. 5, line 99, col. J, M;

•

Plaintiff Celestino Mercado’s total unpaid minimum wage damages are
$1,524.36, and his total unpaid overtime damages are $9,199.54. See Group
Ex. 3; Plaintiffs’ Group Ex. 8, line 72, col. J, M; and

•

Plaintiff Crisanto Pichardo’s total unpaid minimum wage damages are
$1,537.50, and his total unpaid overtime damages are $8,413.18. See Group
Ex. 5; Plaintiffs’ Group Ex. 9, line 119, col. J, M.
Finally, the Court finds that Plaintiff Jaime Mercado, whose flat daily rate

satisfies minimum wage concerns, has incurred no minimum wage damages. Having
worked significant overtime hours without overtime compensation, however, he has

23

incurred total unpaid overtime damages of $39,115.41. See Group Ex. 4; Plaintiffs’
Group Ex. 6, line 196, col. J.
In addition to minimum wage and unpaid overtime damages, Plaintiffs, having
prevailed on their FLSA and IMWL claims, are also entitled to an award of
reasonable attorney’s fees and costs associated with the litigation. 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 Chic., 175 F.3d 544, 550 (7th
Cir. 1999) (“The FLSA directs courts to award reasonable attorneys’ fees and costs to
prevailing plaintiffs.”); 820 ILCS § 105/12 (“If any employee is paid by his employer
less than the wage to which he is entitled under the provisions of this Act, the
employee may recover in a civil action the amount of any such underpayments
together with costs and such reasonable attorney's fees as may be allowed by the
Court . . . .”). The Court will award such fees and costs in a separate order.
C.

Plaintiffs’ Prevailing Wage Act Claim

Illinois’ Prevailing Wage Act requires that all persons “employed by or on
behalf of any public body” be paid not less than “the general prevailing rate of hourly
wages for work of a similar character on public works in the locality in which the
work is performed.” 820 Ill. Comp. Stat. 130/3. Judge Manning previously ruled that
“the undisputed facts establish that the defendants failed to pay the prevailing wage
for the days that the plaintiffs worked on prevailing wage projects, and thus the
motion for summary judgment on the issue of liability is granted.” [111] at 8.

24

As for damages, the evidence provides a factual basis for awarding damages
generally under the Prevailing Wage Act, as it established that the bulk of Plaintiffs’
hours were performed on such jobs. The evidence showed that Plaintiffs’ work fell
into three buckets: prevailing wage act work, other public project work (typically state
jobs or work for the Illinois Department of Transportation), and work on Defendant
Jaime’s farm. The parties stipulated that only 5% of Laredo’s work was for the Illinois
Department of Transportation, Factual Stipulation 7, and Defendant Jaime testified
that most of Laredo’s work constituted prevailing wage jobs. [275] at 57. Plaintiffs
similarly testified that they mostly worked on the highways and freeways. See [274]
at 21 (where Jaime Mercado testified that he worked on state highways); id. at 55
(where Bernardo Mercado testified that, when he was not working at Enrique Jaime’s
farm, he worked on the highways, 90 to 90/94, 355, and 88, in Cook and Lake
counties); id. at 77 (where Celestino Mercado testified that, other than the few days
per season he worked on the farm, he worked “on the freeways”). All of this evidence
supports a finding that Plaintiffs performed an unspecified amount of landscaping
work on projects falling under the auspices of the Prevailing Wage Act.
Notably, however, in contrast to their stipulations concerning the minimum
wage rates, the parties did not stipulate to the applicable prevailing wage rates; and
the record otherwise failed to establish those rates as applied to work performed. No
witness credibly testified to the applicable prevailing wage rates. In fact, Bernardo
Mercado testified that the prevailing wage rate in 2008 was $7.50, id. at 67, but his
guess falls far short of the purported rates reflected in Plaintiffs’ own proposed

25

damages. The parties did offer Joint Exhibit 6, which lists stipulated prevailing wage
rates for “Group A” and “Group B” counties for the months of January and July in
2005, January and July in 2007, July of 2008, and July of 2009. But these rates vary,
and at trial, Plaintiff failed to tie any specific rate to any particular project or work.
And no witness explained how or why such rates were selected (from numerous
others) for inclusion on the exhibit, which counsel prepared for the litigation.
The Court could take judicial notice that the Illinois Department of Labor
publishes prevailing wage rates each year at https://www2.illinois.gov/idol/LawsRules/CONMED/rates/06-01Jan/county.htm (listing the prevailing wage rates for
each Illinois county, delineated by trade). 9 But the parties did not invoke judicial
notice at trial, and the published rates, without more, do not allow this Court to
reasonably calculate the proper amount of this type of damages. For example, the
IDOL resources demonstrate that the prevailing wage rates differ, even within the
same year, depending upon: (1) the month in which the work is performed; (2) the
county in which the work is performed; and (3) the category of tradesman performing
the work. Id. Although Joint Exhibit 6 includes some stipulated rates, it does not
show what work was performed in what county in what month, and does not
otherwise provide a basis for reasonable, evidenced-based approximations of such
facts.
See Patel v. Hurd, No. 12 C 556, 2012 WL 1952845, at *4 (N.D. Ill. May 30, 2012) (court may take
judicial notice of facts drawn from public records available on a government website under Federal
Rule of Evidence 201(b) because “a judicially noticed fact must be one not subject to reasonable dispute
in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable
of accurate and ready determination by resort to sources whose accuracy cannot reasonable be
questioned.”); Bova v. U.S. Bank, N.A., 446 F. Supp. 2d 926, 930 n. 2 (S.D. Ill. 2006) (a court may
judicially notice public records available on government websites).
9

26

Consistent with the IDOL’s resources, the parties acknowledged, in their
arguments to the Court, that the applicable prevailing wage rates depend upon the
county within which the work was performed. And, to this point, Plaintiffs’ counsel
argued that the vast majority of Laredo’s work was probably performed in Zone A,
with some work being done in Zone C. See [275] at 92. But the prevailing wage
information available on the IDOL website speaks in terms of counties, not zones.
Moreover, neither the trial testimony nor the admitted exhibits provide a
factual basis to determine what work was done in what counties (or zones, or groups).
Jaime Mercado testified that he worked on state highways including 90, 94, 355, 88,
and that he worked “in the counties that are in the area or near the area of Chicago.”
[274] at 21. He testified that he worked in Lake, Cook, and Will counties and possibly
others, and sometimes worked on the west side of the state. Id. at 22. But he could
not say —and the record otherwise fails to provide an evidentiary basis to
determine—which hours, performed in which month, were performed in which
county. Likewise, Bernardo Mercado testified that he worked on the highways, 90 to
90/94, 355, and 88, in Cook and Lake counties, id. at 55, but, again, he offered no
testimony to show (or even reasonably approximate) which hours were performed in
which county. So too Celestino Mercado, who testified that he worked mostly on 90/94
and 355, and “possibly other” freeways that he could not recall, in the counties “close
to Chicago” the names of which he did not know. Id. at 77. Importantly, all of the
highways mentioned by Plaintiffs span multiple counties and several (including I-90
and I-94) span multiple states. As a result, Plaintiffs’ testimony does not really

27

narrow the universe of potentially applicable prevailing wage rates. To the extent
some Plaintiffs were able to identify specific counties, they offered no basis for how
the Court should apportion their hours amongst those various counties; nor were they
even able to offer an exhaustive list of the counties in which they worked. In short,
Plaintiffs’ testimony and evidence does not provide a basis to apply any specific
prevailing wage rate over another. 10
At trial, Plaintiff’s counsel admitted that, based upon the evidence, he “had no
idea how to be able to calculate” the percentage of prevailing wage work that occurred
in each county. [275] at 91. Although Plaintiffs admitted Plaintiffs’ Group Exhibits
5, 6, 7, 8, and 9 in an effort to support Plaintiffs’ prevailing wage damages, they did
not present a witness to fully explain how those spreadsheets were created, or what
underlying data was used, etc., to create them. Clearly, Plaintiffs plugged certain
rates into the spreadsheets, but they did not support their decision to select particular
rates over others. The Court specifically highlighted such evidentiary deficiencies in
Plaintiffs’ proof of prevailing wage damages and pressed for any factual basis for the
calculation of these damages:
THE COURT: If there are different zones – A, B, and C – and there’s a
total number of hours, how do I break the hours into the zones to come
up with a number that has – without just grabbing numbers out of the
air . . . because the rates are different. Otherwise, I can’t do the
calculation. . . . How do I break the X, which is the total number of hours
worked, into Zones A, B, and C? I can’t just guess. I would have to have
something to point to in the record because you have the burden of proof.
In fact, although the parties’ admitted a stipulation of certain Illinois prevailing wage rates, the
record does not even establish that the jobs at issue fell within the Illinois Prevailing Wage Act, as
opposed to the Davis-Bacon Act, which covers federal construction projects and may supply different
wage rates, for which the parties offered no stipulation. See [275] at 66 (where Enrique Jaime implied
that some of Laredo’s work constituted “federal” jobs).
10

28

I would have to have something to point to that, Judge, it’s 50 percent
A, it’s 20 percent B, and 30 percent C, or something. I mean, I – there
has to be some way to break it out. Otherwise, how have you proven
any – because that’s a critical variable in the algorithm, right?
[275] at 92–94. In response, Plaintiffs’ counsel represented that the “certified payrolls
indicate where the project is located on it. It will say where the job was or the project
name. Then that’s the location of the job. All of those locations are in Zone A with the
exception of those set forth in red, which are in Zone C.” Id. at 96. But counsel
admitted that the certified payroll records do not themselves delineate which hours
were worked in “Zone A” or “Zone C.” Id. at 96. Again, the parties offered no
stipulation on this issue. In fact, defense counsel disputed that the records, by
themselves, established the applicable rates, as the following exchange makes clear:
Mr. O’Neil [defense counsel]: Certifications will say – I’ll just read it as
an example – well, not all of them do actually –“Spring Road. Federal
contractor, Walsh. Week ending, February 9th, 2008.” That’s what’s in
evidence, Judge.
THE COURT: Well, also what’s in evidence is the chart and it’s the
charts, Plaintiff’s Group 5, 6, 7, 8, and 9, which went in without
objection. So he’s going to – plaintiff's counsel, correct me if I’m wrong.
He’s going to argue that the chart, which is in evidence, is based at least
in terms of divvying up X as to A and C is derived from the certifications
which, in whole or in part, are listing locations which would give you
counties which would in turn help you determine which hours are in
Zone A or Zone C, right?
MR. HARRISON [Plaintiffs’ counsel]: That’s exactly correct, Judge.
THE COURT: Okay. Is there any other factual basis other than what I
just mentioned for [separating] X into Zone A and C?
MR. HARRISON: Just the plaintiff's testimony –
THE COURT: Well, the plaintiff's testimony didn’t – wasn’t countyspecific.
MR. HARRISON: Well, they did, they did testify they worked in Cook,
Will, DuPage, and Winnebago.
THE COURT: They gave you the group but they didn’t give you any type
of estimate of which number of hours would be in which.
MR. HARRISON: No. That’s correct, Judge.
29

THE COURT: Okay. So [what are] your thought on that?
MR. O'NEIL: My whole thought on this, Judge, is from the beginning –
and I understand quite well that if timecards or other things had been
available, we could have been able to discern this. But now relying on
the certified payrolls, which Mr. Harrison is criticizing is unreliable, if
that’s the basis for these charts, there’s no way you can establish where
they came from, what the allotment was.
[275] at 96–98. The Court agrees—Plaintiffs’ plucked one rate from many, without
an evidentiary basis for doing so. 11
Moreover, Plaintiff’s failure of proof cannot simply be chalked up to Laredo’s
shoddy recordkeeping practices. If, as the record suggests, the relevant projects
constituted public works projects, documents ought to exist concerning the jobs’
precise location and applicable rates. Indeed, Enrique Jaime testified that Laredo
received work through a bidding process for such jobs, and records of those contracts
undoubtedly exist. Even if Laredo did not retain records of the awarded contracts,
the general contractors or the State ostensibly would have done so.
Beyond the public contracts (and the requisite underlying records), additional
public documents could have tied the job sites identified on the certified payroll
records to a particular county, and, to the extent they still exist, those documents
could have been introduced or referenced at trial. E.g., Palay v. United States, 349
F.3d 418, 425 n.5 (7th Cir. 2003) (court may take judicial notice of documents within

Plaintiffs’ counsel proposed using the prevailing wage rate for Jo Daviess County to calculate all
prevailing wage damages, as that rate (according to counsel) is lower than the other counties’ rates.
See [275] at 87. But the decision to apply this rate remains wholly untethered to the evidence. No
witness testified that Laredo even sent workers to Jo Daviess County. Instead, the evidence did show
that time captured on Plaintiffs’ spreadsheets represents work performed in numerous counties in
various months throughout each season. Such evidence precludes the application of any single rate,
let alone the proposed “Jo Daviess” rate. Establishing a theoretical floor to the amount of these
damages fails to establish a reasonable approximation of the correct amount itself.
11

30

the public realm). But it is Plaintiffs’ burden to identify and present such documents;
it is not this Court’s job to track down such evidence. See, e.g., In re Sorci, 315 B.R.
723, 728 (Bankr. N.D. Ill. 2004) (“it is not the responsibility of the Court to behave
‘like pigs, hunting for truffles buried in briefs.’ While the court may, in its discretion,
take judicial notice of matters of public record, it is not the responsibility of the court
to scour the record to make a party’s case for it.”) (quoting United States v. Dunkel,
927 F.2d 955, 956 (7th Cir. 1991) and citing Waldridge v. Am. Hoechst Corp., 24 F.3d
918, 922 (7th Cir. 1994)).
Plaintiffs also could have called the person who prepared their spreadsheets to
explain the underlying evidence used to ascertain the prevailing wage rate for each
set of hours; that person may have, for example, testified that he or she took the name
of the project from the payroll records and then used other sources to determine where
the project occurred. But Plaintiffs did not call such a witness or otherwise present
such evidence. At trial, Plaintiffs’ counsel represented that all of the jobs identified
on the certified payroll records were in “Zone A,” with the exception of a small
undefined subset, which were located in “Zone C.” [275] at 96. He also represented
that none of the jobs were in “Zone B.” Id. at 92. But this conclusory proffer requires
something more than an unexplained review of the certified payroll records, which
identify jobs in a general or even nondescript manner. See Group Exhibits 8–17
(identifying projects such as “Valley Bridge” or “Spring Rd.” or “Finley 83” or “West
Lake Ave” or “North of Plaza 21” or “South of Plaza 21” or “Sheridan Road” or
“Howard Street” or “Salt Creek”). The record lacks the additional evidence necessary

31

to link the generic job names to a specific county within the State of Illinois, and
Plaintiffs failed to build a bridge between the exhibits and their conclusions.
Given the deficiencies in Plaintiffs’ proof, the record supplies no basis to
determine what rates to apply in awarding damages on Count III. As a result, any
award of prevailing wage damages would necessarily—and improperly—rest upon
guesswork and speculation. E.g., Wasson v. Peabody Coal Co., 542 F.3d 1172, 1176
(7th Cir. 2008) (affirming the entry of judgment as a matter of law where the damages
award was unsupported in the evidence and based on nothing but speculation and
guesses); Brand v. Comcast Corp., 135 F. Supp. 3d 713, 742 (N.D. Ill. 2015) (noting
that, even under Anderson’s relaxed standard, plaintiffs must still submit sufficient
evidence from which a jury could calculate their damages; plaintiffs “may rely on their
recollection, but not on speculation.”). Unwilling to guess or divine numbers from
thin air, the Court declines to award Plaintiffs damages under the Prevailing Wage
Act based upon the evidence adduced in the record.
IV.

Conclusion
For the reasons explained more fully above, based upon the prior decisions

constituting the law of the case, and based upon the evidence at trial, the Court finds
in favor of Plaintiffs and against Defendants on Plaintiffs’ FLSA claim (Count I),
IMWL claim (Count II), and IPWA claim (Count III), and awards damages as follows:
to Plaintiff Jaime Mercado, $39,115.41 (all on Count I); to Plaintiff Bernardo
Mercado, $4,736.69 ($4,205.82 on Count I and $530.87 on Count II); to Plaintiff
Celestino Mercado, $10,723.90 ($9,199.54 on Count I and $1,524.36 on Count II); to

32

Plaintiff Jose Guzman, $14,368.33 ($12,523.21 on Count I and $1,845.12 on Count
II); and to Plaintiff Crisanto Pichardo, $9,950.68 ($8,413.18 on Count I and $1,537.50
on Count II), for a total award of $73,457.16 on Count I and $5,437.85 on Count II.
Plaintiffs having failed to present sufficient evidence to support the calculation
of prevailing wage damages, the Court declines to award damages on Count III.
Because Plaintiffs prevailed on their FLSA and IMWL claims, however, the
Court awards, in addition to damages as set forth above, reasonable attorney’s fees
and costs of suit. See 29 U.S.C. § 216(b); 820 ILCS § 105/12.
The Court directs the Clerk to enter judgment accordingly and will issue a
separate order awarding attorneys’ fees and costs.
Dated: March 31, 2022

ENTERED:
___________________________________
Judge John Robert Blakey
United States District Court

33