Brand v. Comcast Corporation et al
Filing
63
MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 11/19/2012. (ma,)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES BRAND, individually, and on
behalf of all others similarly situated,
Plaintiff,
v.
COMCAST CORPORATION &
COMCAST CABLE
COMMUNICATIONS
MANAGEMENT, LLC,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
No. 12 CV 1122
Magistrate Judge Young B. Kim
November 19, 2012
MEMORANDUM OPINION and ORDER
Plaintiff James Brand, a line technician at Defendant Comcast Corporation
(“Comcast”), brings this collective action suit against Comcast alleging that it denied Brand
certain overtime payments in violation of the Fair Labor Standards Act, 29 U.S.C. § 201, et
seq., the Illinois Minimum Wage Law, 820 ILCS 105/1, et seq., and the Illinois Wage
Payment and Collection Act (“IWPCA”), 820 ILCS 115/1, et seq. In the current motion to
dismiss, Comcast seeks to dismiss the IWPCA claim for lack of sufficient pleading under
Rule 12(b)(6). For the following reasons, the motion is granted without prejudice:
Background
Brand filed his original three-count complaint against Comcast on February 16, 2012.
(R. 1.) Four months later, Comcast moved for judgment on the pleadings with respect to the
IWPCA claim, arguing that Brand failed “to sufficiently plead the requisite ‘employment
contract or agreement’ to state an IWPCA claim.” (R. 33, Mot. to Dis. ¶ 3.) Comcast
withdrew its motion after Brand sought and received leave to amend his complaint to address
the pleading deficiency. (R. 36.) Brand then filed his amended complaint on July 3, 2012.
(R. 37.)
In his amended complaint, Brand alleges that Comcast “entered into an agreement to
pay Plaintiff and class members as non-exempt employees for all the time they worked,
including overtime, as required by the IWPCA.” (Id. ¶ 51.) Brand alleges that Comcast
violated the IWPCA by improperly deducting wages for meal periods whether or not he and
the class members took an actual break, and by failing to pay them for the actual time worked
while on-call or during pre- or post-shift activities. (Id. ¶¶ 52-53.) According to Brand,
Comcast’s employee “handbooks amongst other things” memorialized Comcast’s agreement
to pay its employees for all time worked, including overtime. (Id. ¶ 51.) Comcast has moved
to dismiss Brand’s IWPCA claim pursuant to Federal Rule of Civil Procedure 12(b)(6),
arguing that Brand failed to sufficiently plead the kind of agreement required to support a
claim for relief under the IWPCA.
Analysis
Comcast’s motion to dismiss requires this court to resolve whether Brand’s allegations
with respect to his IWPCA claim are sufficient to meet the pleading standards described in
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). A complaint must include “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual
2
allegations are not necessary to meet those requirements, but “a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Rather, the allegations
“must be enough to raise a right to relief above the speculative level.” Id. In other words,
to survive a motion to dismiss, a “complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal
quotation omitted). In reviewing the sufficiency of Brand’s amended complaint, this court
takes the allegations as true and views the facts in the light most favorable to Brand. See
McGowan v. Hulick, 612 F.3d 636, 638 (7th Cir. 2010).
The IWPCA allows overtime recovery in cases where, pursuant to an employee
contract or agreement on overtime, that wage is unpaid. Jaramillo v. Garda, Inc., No. 12 CV
662, 2012 WL 1378667, at *2 (N.D. Ill. April 20, 2012). Under the IWPCA, “[e]very
employer shall be required, at least semi-monthly, to pay every employee all wages earned
during the semi-monthly pay period.” 820 ILCS 115/3. Wages are defined as “any
compensation owed an employee by an employer pursuant to an employment contract or
agreement between the 2 parties, whether the amount is determined on a time, task, piece,
or any other basis of calculation.” 820 ILCS 115/2 (emphasis added). The IWPCA does not
provide an independent right or cause of action, but simply enforces the terms of an existing
contract or agreement. Elder v. Comcast Corp., No. 12 CV 1157, 2012 WL 3835100, at *1
(N.D. Ill. Sept. 4, 2012). Therefore, to state a claim under the IWPCA, the plaintiff must
allege that overtime was due to him under an employment contract or agreement. See Smith
3
v. C.H. James Rest. Holdings, LLC, 11 CV 5545, 2012 WL 255806, at *2 (N.D. Ill. Jan. 26,
2012).
Comcast argues that Brand failed to sufficiently plead a claim to recover overtime
wages under the IWPCA because Brand merely alleges that Comcast “entered into an
agreement to pay Plaintiff and class members as non-exempt employees for all the time they
worked.” (R. 37, Am. Compl. ¶ 51.) Comcast claims that this is the level of conclusory
statement that falls short of federal pleadings standards. See Twombly, 550 U.S. at 555;
Elder, 2012 WL 3835100, at *2. The only detail Brand offers to support his allegation that
an agreement exists is his assertion that the agreement “is memorialized in Defendants’
handbooks amongst other things.” (R. 37, Am. Compl. ¶ 51.) Comcast argues that Brand’s
reference to its handbooks and “other things” does not meet the pleadings requirement of
Rule 12(b)(6). (R. 45, Mem. at 5.)
As Brand correctly points out, in the IWPCA context, “an ‘agreement’ is broader than
a contract and requires only a manifestation of mutual assent on the part of two or more
persons; parties may enter into an ‘agreement’ without the formalities and accompanying
legal protections of a contract.” Skelton v. American Intercontinental Univ. Online, 382
F. Supp. 2d 1068, 1075 (N.D. Ill. 2005), amended, No. 03 CV 9009, 2005 WL 2649190
(N.D. Ill. Oct. 11, 2005) (internal quotation omitted). In some cases, “an employee handbook
. . . creates enforceable contractual rights if the traditional requirements for contract
formation [offer, acceptance, and consideration] are present.” Id. (quoting Duldulao v. St.
4
Mary of Nazareth Hosp. Ctr., 115 Ill.2d 482, 490 (1987)). But where the handbook includes
a clause disclaiming that it or any other of the employer’s policies “is an express or implied
contract,” that disclaimer destroys any argument that the handbook or policy creates a
contract for overtime wages under the IWPCA. Id.; see also Camilotes v. Resurrection
Health Care Corp., No. 10 CV 366, 2012 WL 2905528, at *6 (N.D. Ill. July 16, 2012).
In support of its argument that Brand’s reliance on Comcast’s employee handbook is
insufficient to support his IWPCA claim, Comcast attached to its motion to dismiss copies
of its handbooks dated from 2005 to 2012. Generally, courts are disinclined to reach past the
four corners of the pleadings at the Rule 12(b)(6) stage, but “documents attached to a motion
to dismiss are considered part of the pleadings if they are referred to in the plaintiff’s
complaint and are central to his claim.” Wright v. Associated Ins. Cos. Inc., 29 F.3d 1244,
1248 (7th Cir. 1994). Because Brand expressly references the handbook in his amended
complaint as the central support for his IWPCA claim, the court will consider the handbooks
Comcast submitted in support of its motion.
Brand contends that at least one version of the handbook constitutes an agreement for
overtime pay, because it states that “[o]vertime compensation will be paid to employees in
non-exempt positions at a rate of one and one-half (1.5) of the regular rate for all hours
worked over forty (40) hours during the workweek.” (R. 50, Resp. at 4.) But as Comcast
points out in its reply, Brand omits from this language its key end-phrase. The full sentence
reads that overtime will be paid for all hours over 40-hour workweek “during the workweek
5
or otherwise in compliance with applicable law.” (Id., Ex. B (emphasis added); R. 53, Reply
at 6.) This last phrase demonstrates that the handbook merely memorialized Comcast’s preexisting legal obligations under state and federal wage laws. See Patton v. University of
Chicago Hosp., 706 F. Supp. 627, 629 (N.D. Ill. 1989) (holding that employer’s
antidiscrimination policy does not create contract with employees where it “merely
constitutes a reiteration of a pre-existing legal duty”); Sample v. Aldi Inc., No. 93 CV 3094,
1994 WL 48780, at *12 (N.D. Ill. Feb. 15, 1994) (noting that handbook statements that
restate pre-existing legal duty do not create contract). Because the handbook language
alludes only to Comcast’s statutory obligations, it does not create new contractual rights, and
Brand cannot use the IWPCA merely to enforce his rights under state or federal statutes. See
Jaramillo, 2012 WL 1378667, at *2-3 (noting that “there is no indication . . . that the Illinois
legislature or courts have considered the IWPCA an appropriate mechanism for enforcing
overtime wage laws” and that the Illinois Department of Labor—the agency with interpretive
authority over the IWPCA—“has concluded that [the IWPCA] does not cover overtime
claims”). Accordingly, the language Brand relies on here cannot form the basis of a separate,
binding agreement between Comcast and its employees sufficient to support a claim under
the IWPCA.
Even if the relied upon language in Comcast’s handbook was sufficient to form some
separate agreement in theory, the presence of an express disclaimer demonstrates that there
was no mutual assent behind the handbook’s statements. Comcast’s handbook informs
6
employees that “[t]he contents of the Comcast Employee Handbook are not intended to
create an express or implied contract of employment and you may not rely on it as such.”
(R. 45, Mem. at 6; Id., Ex. 1 at 4.) Even more pointedly, the handbook states that:
[t]he individual provisions of the Employee Handbook are simply guidelines,
and Comcast reserves sole discretion to interpret them and resolve any conflict
between or among policies. Comcast also reserves the right to change, delete,
suspend, discontinue, or otherwise revise the Employee Handbook, or any
individual policy contained in it, at any time for any reason, with or without
notice.
(R. 45, Ex. 1 at 4.) As Comcast points out, given the presence of these disclaimers, the
handbook’s provisions are merely guidelines that leave Comcast with sole discretion to
interpret and resolve conflicts about the handbook’s meaning, regardless of whether its
employees agree or are even consulted about the changes. Accordingly, the handbook does
not provide the requisite manifestation of mutual assent to support even the broader
interpretation of an agreement that governs in the IWPCA context. See Camilotes, 2012 WL
2905528, at *6; see also Martino v. MCI Communications Servs., Inc., No. 08 CV 4811,
2008 WL 4976213, at *9 (N.D. Ill. Nov. 20, 2008) (finding that plaintiff’s IWPCA claim
fails where alleged agreement set forth in handbook contained express disclaimer); Pautlitz
v. City of Naperville, No. 89 CV 8855, 1991 WL 33658, at *2-3 (N.D. Ill. Mar. 8, 1991)
(holding that express disclaimers in handbook foreclose IWPCA claim).
Brand also argues that Comcast acknowledged the handbook as evidence of an
employment agreement in another context. Specifically, he asserts that “[i]n arguing against
[conditional] certification, Defendants themselves rely on the Employee Handbook as an
7
agreement” and “attach[ed] portions of the Employee Handbook and cite[d] to Employee
Handbook acknowledgments as evidence that Plaintiff and opt-in Plaintiffs were aware of
and agreed to the policies in Defendant’s handbook.” (R. 50, Resp. at 5 (emphasis omitted).)
It is true that an attorney’s statements may bind a party in later proceedings where counsel
makes a factual assertion that is “deliberate, clear, and unambiguous.” See Robinson v.
McNeal Consumer Healthcare, 615 F.3d 861, 872 (7th Cir. 2010) (internal quotation
omitted). But the pages Brand points to in Comcast’s opposition to certification do not
convey unambiguous (or even implied) assertions that the handbook represents or
memorializes a freestanding agreement. Instead, Comcast asserted that it requires its
employees to accurately record the time they work, and cited the handbook as the
memorialization of its rule that its employees not over-report or under-report the time they
work. (R. 41, Comcast Cert. Resp. at 5-6.) Comcast’s citation to that rule neither suggests
that it entered into a freestanding agreement to pay its employees for the time Brand seeks
compensation for here, nor that it intended to mutually bind itself and its employees to the
handbook’s provisions in contravention of the handbook’s disclaimer. Accordingly, this
court is not convinced by Brand’s argument that Comcast’s position at the conditional
certification stage somehow formed an admission regarding the handbook that ties its hands
here. See Robinson, 615 F.3d at 872.
In the amended complaint, Brand alludes to the existence of other unspecified
facts—referenced as “other things”—that he alleges represent an agreement between
8
Comcast and its employees for overtime pay. (R. 37 ¶ 51.) In his response to the motion to
dismiss, Brand states that he has discovered policy materials that reference Comcast’s
calculation of overtime pay, and points to those documents as memorializing the agreement
underlying the IWPCA claim. (R. 50, Resp. at 6.) But because Brand did not specifically
reference those documents in his complaint, the court cannot consider their application here
without converting the present motion to one for summary judgment. See Fed. R. Civ. P.
12(d). A better course at this stage is to allow Brand to file a second amended complaint to
identify those alternate bases for the IWPCA allegations—to the extent he believes there is
an agreement that does not merely memorialize Comcast’s pre-existing obligation to comply
with state and federal law—with the level of clarity required by Twombly and Iqbal. In other
words, Brand must present allegations sufficient for this court to review whether he has
plausibly shown that an agreement for overtime wages exists or existed between Comcast
and its employees sufficient to support his IWPCA claim.
Conclusion
For the foregoing reasons, Comcast’s motion to dismiss Brand’s IWPCA claim under
Rule 12(b)(6) is granted without prejudice to Brand filing a second amended complaint
consistent with this opinion.
ENTER:
________________________________
Young B. Kim
United States Magistrate Judge
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?