O'Donnell et al v. America at Home Healthcare and Nursing Services, Ltd.

Filing 74

MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 2/17/2015: Defendant's Motion for Summary Judgment 44 is granted in part and denied in part. The motion is granted insofar as it pertains to Count III of plaintiffs' complaint. The motion is denied insofar as it pertains to Counts I and II of the complaint. [For further detail see attached order.] Notices mailed by Judicial Staff. (psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STEVEN O’DONNELL and
AMY O’DONNELL,
Plaintiffs,

No. 12 CV 6762

v.

Judge Manish S. Shah

AMERICA AT HOME HEALTHCARE AND
NURSING SERVICES, LTD., d/b/a ANGELS
AT HOME HEALTHCARE, and RITA’S
HOMECARE SERVICES,
Defendants.
MEMORANDUM OPINION AND ORDER
Steven O’Donnell and his wife Amy worked for America at Home Healthcare
and Nursing Services, Ltd., an in-home healthcare provider. Steven was the
company’s Director of Human Resources, while Amy was a nurse. In May 2011, one
of America at Home’s owners discovered that Steven had been paid for over 470
hours of overtime work since December 2009. Steven was fired. While the company
claims that it terminated Steven because the overtime hours were unapproved,
Steven claims that he was fired because he refused to comply with the owners’
demand that he return all of the overtime payments (which, Steven says, he
lawfully earned).
A few weeks after Steven was discharged, Amy, too, was let go. The company
maintains that it fired Amy because, after Steven was terminated, the owners
learned that Steven had used company funds to pay back (at an accelerated rate) a

loan Amy had taken out against her 401(k) plan; the owners believed Amy was
complicit in the loan-repayment scheme. Amy, however, claims that she was fired to
further punish Steven for having refused to return his overtime pay.
Steven and Amy sued America at Home (and St. Rita’s Homecare Services,
an assumed name of America at Home) for unlawful retaliation under Section
215(a)(3) of the Fair Labor Standards Act (Counts I and II), and for retaliatory
discharge under Illinois common law (Count III). Defendants filed a motion for
summary judgment on all three counts of the complaint. For the reasons discussed
below, defendants’ motion is granted in part and denied in part.
I.

Legal Standard
Summary judgment must be granted where there is no genuine issue of

material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). A genuine issue of material fact exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Serednyj v. Beverly
Healthcare, LLC, 656 F.3d 540, 547 (7th Cir. 2011) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). In reviewing a summary-judgment motion, a
court construes all facts, and draws all reasonable inferences from those facts, in
favor of the non-moving party. United States v. P.H. Glatfelter Co., 768 F.3d 662,
668 (7th Cir. 2014) (quoting Laskin v. Siegel, 728 F.3d 731, 734 (7th Cir. 2013)).

2

II.

Facts
A.

Steven O’Donnell’s Employment and Termination

In January 2009, Steven O’Donnell began working for America at Home
Healthcare and Nursing Services, Ltd., an Illinois corporation that provides inhome healthcare services. See [69] at 2 ¶¶ 5, 7.1 He started in accounts receivable,
accounts payable, and payroll, and eventually took over as Director of Human
Resources in January 2010. See id. at 3 ¶¶ 12, 15.2 Steven was an hourly employee,
which meant that he had to complete time sheets listing his work hours; he received
bi-weekly wage payments. See [70] at 2–3 ¶¶ 4–5.
In May 2011, one of America at Home’s owners, Rachael Fitzpatrick,
reviewed Steven’s payroll records and saw that Steven had claimed (and been paid
for) 477.5 hours of overtime between December 2009 and May 25, 2011. See [69] at 7
¶ 31; [70] at 5 ¶ 12; id. at 7 ¶ 21.3 Fitzpatrick then spoke with Steven’s supervisor

Citations to the record are designated by the document number as reflected on the district
court’s docket, enclosed in brackets; referenced page numbers are from the CM/ECF header
placed at the top of filings. The facts related in this opinion are taken largely from the
parties’ Local Rule 56.1 statements of uncontested facts (and replies or responses thereto),
and relevant deposition testimony.
1

In their response to paragraph 15 of defendants’ Local Rule 56.1 statement, plaintiffs
admit that Steven took over as America at Home’s Director of Human Resources in January
2010, but then “qualify” this admission with additional facts—e.g., that in April or May of
2009, Steven transferred from his position in accounts receivable to a “marketing position
with minimal human resources responsibilities.” See [69] at 3 ¶ 15. Defendants object to
this qualification, arguing that the inclusion of additional facts in one’s Rule 56.1 response
is impermissible under the local rules. The additional facts are immaterial, and I do not
rely on them. I follow the same approach regarding plaintiffs’ responses to paragraphs 26,
27, and 46 of defendants’ Rule 56.1 statement, to which defendants also object. (Any fact
not addressed in this opinion was immaterial to the summary-judgment analysis.)
2

The parties dispute the nature of Fitzpatrick’s review. Defendants assert that Fitzpatrick
“investigat[ed]” the amount of overtime Steven claimed he had worked, while plaintiffs
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(and CEO of the company), Gregory Taylor, about Steven’s overtime pay. See [69] at
2 ¶ 8; id. at 4 ¶ 17; id. at 8 ¶ 33. Taylor told Fitzpatrick that at one point he had
approved Steven to work overtime on a specific project, but that Taylor did not
know Steven had been collecting overtime payments for over a year. See March 14,
2014 Deposition of Rachael Fitzpatrick, [51] at 28, Tr. at 26:11–:16. Fitzpatrick also
discussed Steven’s overtime with her co-owners, Kim Metcalf-Richards and Tami
Shemanski. See [69] at 2 ¶ 11; id. at 8 ¶ 34. During that conversation, the owners
decided that Steven’s employment with America at Home should be terminated. See
id. at 8 ¶ 34.4
Steven was indeed terminated, but exactly how and when he was let go is a
matter of great dispute. According to plaintiffs, Taylor (Steven’s supervisor) first
spoke with Steven about the overtime pay on June 3, 2011. See [70] at 8 ¶ 23.
During that discussion, Taylor accused Steven of “committing overtime fraud.” Id.
Steven denied that he had done anything wrong, and reminded Taylor that not only
contend that Fitzpatrick’s so-called investigation was merely a random review of payroll
records, followed by a discussion with Steven’s supervisor. See [69] at 7 ¶ 31. How or why
Fitzpatrick inspected Steven’s payroll records is immaterial. What is important is that
Fitzpatrick did inspect those records in May 2011, and that her inspection triggered a
series of events leading up to Steven’s termination, as discussed below.
Plaintiffs assert that any reference to the owners’ conversation about Steven (and,
therefore, their purported decision to terminate him) is inadmissible hearsay. See [69] at 8
¶ 34. Not so. Hearsay is a statement made outside of the litigation proceeding, offered in
evidence to prove the truth of the matter asserted. See Fed. R. Evid. 801(c). Fitzpatrick’s
testimony does not contain any statements that are in themselves assertions of factual
matter. Her testimony merely describes the owners’ collective intent: to terminate Steven.
Statements describing a declarant’s intentions are not hearsay. See Catalan v. GMAC
Mortg. Corp., 629 F.3d 676, 694 (7th Cir. 2011). Moreover, even if Fitzpatrick’s testimony
were hearsay, it would still be admissible under the state-of-mind exception to the hearsay
rule. See Fed. R. Evid. 803(3) (allowing into evidence statements declaring a then-existing
state of mind, including plan or intent).
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had Steven worked all of the overtime hours for which had been paid, but that
Taylor had approved those hours, as well. See id. Taylor then excused himself, made
a phone call, and returned to say, “We have an opportunity for you to keep your job,
but you’re going to have to pay back the overtime; we’ll talk on Monday.” Id.
Plaintiffs claim that on Monday, June 7, 2011, Taylor again met with Steven
about the overtime payments. See id. ¶ 24. The two met initially around 9:30 a.m.,
says Steven, at which time Taylor presented Steven with a document purportedly
requiring the latter to give back his overtime pay. See id. ¶ 24; March 20, 2014
Deposition of Steven O’Donnell, [49] at 59–60, Tr. at 57–58. Steven refused to sign
the document, see [49] at 62, Tr. at 60—protesting that he had earned the overtime
hours and that Taylor was violating the law, see [70] at 8–9 ¶ 25.5 When Steven
refused to sign, Taylor purportedly said: “Well, if I take this back to the ladies, . . . if
they don’t like it, you could lose your job.” Steven Deposition, [49] at 62, Tr. at 60:5–

Steven testified that when he and Taylor met on the morning of June 7, Steven refused to
sign the document that Taylor presented to him. See [49] at 62, Tr. at 60. Steven also
testified that he said Taylor was violating the law, see id. at 112, Tr. at 110:22–:23; but
Steven did not explain (in his testimony) when, in relation to refusing to sign the document,
he actually made this statement. Other evidence provides some clues, however. Plaintiffs
allege that when Steven said Taylor was violating the law, the latter understood this to
mean that Steven was claiming to have worked the overtime hours at issue. See [70] at 8–9
¶ 25 (citing March 13, 2014 Deposition of Gregory Dean Taylor, [50] at 36, Tr. at 134–35).
And Taylor testified that Steven made this assertion when the two met on the morning of
June 7, 2011. See Taylor Deposition, [50] at 30, Tr. at 110:5–:21 (testifying that Steven told
Taylor he had “done nothing wrong” when the two met at some time between 8:00 and
10:00 a.m. on June 7); id. at 36, Tr. at 134:13–135:4 (testifying that, when Steven said “he
had done nothing wrong,” Taylor understood this to mean Steven felt he should not have to
return the overtime wages because he had earned them). Viewing these facts in the light
most favorable to plaintiffs, a reasonable inference may be drawn that Steven said Taylor
was violating the law at or around the same time Steven refused to sign the document
requiring the return of his overtime pay.
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:9. Steven again refused to sign. See id., Tr. at 60:9–:10. At approximately 12:30
p.m. that same day, Steven claims that Taylor approached him once more, this time
with one of the company’s co-owners (Fitzpatrick) nearby. See id., Tr. at 60:12–:17.
Taylor said to Steven that he had “presented that [Steven] wouldn’t sign” the
document, and that Steven “no longer work[ed] there[;] it was [Steven’s] choice.” Id.,
Tr. at 60:20–:22.
Defendants give quite a different account of what happened. While
defendants admit that Taylor met with Steven on June 3 and June 7, 2011, see [69]
at 8–9 ¶¶ 36, 38, they assert that Taylor fired Steven on the earlier—not the later—
of those two dates, see [46] at 6 ¶ 37. According to Taylor, he told Steven on June 3
that the owners were “disappointed with [Steven’s] actions” regarding the overtime
payments, and that, as a result, the defendants “were going to terminate him.”
March 13, 2014 Deposition of Gregory Dean Taylor, [50] at 29, Tr. at 106:7–:9, :15–
:16. Taylor then told Steven that he (Steven) had two options: he could resign from
the company, in which case he would receive two weeks’ severance pay, or he would
be fired immediately. See id., Tr. at 106:16–:23. It was at that point, says Taylor,
that Steven defended his actions regarding the overtime and offered to pay back the
overtime money in an effort to save his job. See id., Tr. at 107:8–:19. Taylor then
made a phone call to Fitzpatrick to tell her what Steven had said, after which
Taylor told Steven that Fitzpatrick would have to speak with the other owners. See
id., Tr. at 108:2–:19. Taylor told Steven that the two could meet again the following

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Monday (June 7), and that in the meantime Steven “should carefully consider the
two options that [Taylor] had given him.” See id. at 29, Tr. at 108:21–:24.
Taylor says that he met with Steven again on the morning of June 7. See id.
at 30, Tr. at 109–11. According to Taylor, Steven began that conversation by stating
that he would not agree to pay back any of the overtime pay (as Taylor claims
Steven had offered to do), since he had thought about things over the weekend and
had decided that he had done nothing wrong. See id., Tr. at 110:17–:21. Taylor
responded that the owners had discussed Steven’s proposal and would not accept it
anyway, and that they had left it up to Taylor to decide whether to keep Steven on
as an employee (though he would necessarily be removed from his position as
Director of Human Resources). See id., Tr. at 111:1–:6. Taylor told Steven that,
because of Steven’s lack of remorse over his actions, Taylor would “continue with
the termination,” and that June 7 would be Steven’s last day. Id., Tr. at 111:7–:11.
B.

Amy O’Donnell’s Employment and Termination

Amy O’Donnell is Steven O’Donnell’s wife. See [69] at 6 ¶ 27; Defendants’
Answer to Plaintiffs’ Complaint, [18] at 2 ¶ 4. When Steven was fired from his job at
America at Home, Amy also worked there (as a nurse). See [69] at 9 ¶ 40. Amy
performed nursing services for St. Rita’s Homecare Services, as well. See id. St.
Rita’s is an assumed name of America at Home. See id. at 2 ¶ 9. Both provide inhome healthcare services, and both are owned by the same three individuals
described above. See id. ¶¶ 10–11.

7

The parts of Amy’s story most relevant to defendants’ motion are those that
took place after her husband was fired from America at Home. But that sequence of
events stems from an earlier set of events that took place while Steven was still
employed. When Steven was Director of Human Resources for America at Home,
one of his responsibilities was to apply payments toward loans taken out by
company employees against their 401(k) plans. See [69] at 5 ¶ 26. When Steven
made these repayments on behalf of certain employees, however, he paid more than
the minimum required—that is, he accelerated the loan payments so that the loans
against those employees’ respective 401(k) plans would be paid off sooner than
scheduled. See id. at 6 ¶¶ 27–28. The individuals for whom Steven made accelerated
loan payments were his wife (Amy) and two other America at Home employees,
Andrea Castrajon and Michelle Buissereth-Reed. See id. ¶ 27. The parties dispute
who ultimately provided the money to fund these accelerated payments, but agree
that the money came at least initially from America at Home. See id. ¶ 29.6
When Steven was fired, Jordan Trotto replaced him as Director of Human
Resources. See [70] at 10 ¶ 30. Trotto discovered the accelerated loan payments that
Steven had made, and informed Steven’s former supervisor (Taylor). See id. at 11
¶ 32. Taylor, in turn, informed the company’s owners. See [69] at 10 ¶ 46.7

Defendants claim that the money came from America at Home, while plaintiffs contend
that the initial payment amounts were to be reimbursed by the employees who had
borrowed against their 401(k) plans in the first instance. See [69] at 6–7 ¶ 29, [70] at 11–12
¶ 34.
6

Plaintiffs argue that any discussion Taylor may have had with the company’s owners is
inadmissible hearsay. See [69] at 10 ¶ 46. It is not. Taylor’s testimony concerning the
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According to defendants, the owners then decided to terminate Steven’s wife Amy,
because they believed that Amy and Steven together had stolen money from
America at Home. See id. at 11 ¶ 47.8 On June 29, 2011, Amy was in fact
terminated from both America at Home and St. Rita’s. See id. ¶ 48. The other two
employees whose loan payments had been accelerated by Steven (Castrajon and
Buissereth-Reed) were not. See [70] at 12–13 ¶ 37. Those employees were instead
permitted to reimburse America at Home through paycheck deductions. See id.
Five days before Amy was discharged, she had delivered to America at Home
a request from Steven for a copy of his personnel file. See [70] at 10 ¶ 29; id. at 13
¶ 38. The request was made under the Illinois Personnel Records Act, and included
in particular a request for the document Taylor had allegedly presented to Steven
on June 7, 2011—that is, the document purportedly obligating Steven to repay his
overtime wages (which Steven had refused to sign). See [70] at 10 ¶ 30. Steven did
receive from America at Home a copy of his personnel file, but it did not include the
document that Steven claims to have seen on June 7. See id. Jordan Trotto, Steven’s
replacement as Director of Human Resources, spoke to Taylor about Steven’s
request for the June 7 document, but, according to Trotto, Taylor said the document
discussion is offered to show that the conversation took place, not to prove the truth of
whatever was discussed.
Plaintiffs object to the admission of this statement on the grounds that it is hearsay and
that it lacks foundation. See [69] at 11 ¶ 47. Plaintiffs do not explain why the statement
lacks foundation, and so have waived this argument. See Judge v. Quinn, 612 F.3d 537, 557
(7th Cir. 2010) (“[P]erfunctory and undeveloped arguments . . . are waived.”) (citation
omitted). Nor is the statement inadmissible hearsay. Evidence concerning the owners’
decision to terminate Amy is evidence of their intent or state of mind. As discussed above at
footnote 4, such evidence is not hearsay and is admissible.
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no longer existed because Steven had refused to sign it. See id.9 After both Steven
and Amy had been let go from the company (and about a week after the latter’s
termination), Taylor told Clarice Heckler, another America at Home employee, that
what had happened to Amy was because of her having assisted Steven in requesting
his records. See id. at 13 ¶ 38; Declaration of Clarice Heckler, [69-15] at 2 ¶ 3.10
C.

Procedural History

In 2012, Steven and Amy O’Donnell filed suit against America at Home and
St. Rita’s, alleging that they had been fired in retaliation for Steven’s refusal to

Defendants argue that evidence of the conversation between Taylor and Trotto is
inadmissible hearsay. See [70] at 10 ¶ 30. Statements are not hearsay if made by an
opposing party (or its agent or employee concerning a matter within the scope of their
agency or employment) and offered against that party. See Fed. R. Evid. 801(d)(2). Both
Taylor and Trotto were defendants’ employees, and their conversation pertains to matters
within the scope of their employment—a human-resources issue (Trotto’s discipline)
involving one of Taylor’s former supervisees. Evidence of Taylor and Trotto’s conversation
is therefore admissible against defendants.

9

Defendants also argue that is unclear from Trotto’s testimony that Taylor even knew
which document Steven had requested. See [70] at 10 ¶ 30 (citing April 17, 2014 Deposition
of Jordan William Trotto, [53] at 14, Tr. at 46–47). But Trotto’s testimony does not suggest
that Taylor was confused about what Steven wanted. According to Trotto, Taylor told him
that “the document” was no longer in Steven’s personnel file because Steven had refused to
sign it. See Trotto Deposition, [53] at 14, Tr. at 46:23–47:2. There is no evidence suggesting
that on June 7 Taylor presented more than one document to Steven, and so a reasonable
juror could conclude that when Trotto passed along Steven’s request for “the letter that
[Taylor had] presented to [Steven] on June 7, 2011,” see [69-9] at 2, Taylor knew exactly
what Steven was talking about.
Plaintiffs argue that Taylor’s statements to Clarice Heckler are inadmissible hearsay. See
[70] at 13 ¶ 38. Taylor’s statements are not hearsay because they are admissions of a partyopponent’s employee. Taylor purportedly spoke to Heckler about why Amy was fired, and
Amy’s termination was a matter within the scope of Taylor’s employment at America at
Home. See Taylor Deposition, [50] at 21, Tr. at 75:23–75:3 (“Q: Did someone instruct
Darlene [Savary, Vice President of Operations and Billing, see id. at 9, Tr. at 25–26] to
terminate Amy? A: Yes. . . . Me.”). Evidence of Taylor’s comments to Heckler may be offered
against defendants. See Fed. R. Evid. 801(d)(2).
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repay his overtime wages. Plaintiffs contended that their respective terminations
violated the anti-retaliation provision of the Fair Labor Standards Act. See [1] at 2–
6 (Counts I, II). They also brought a claim under the Illinois common-law doctrine of
retaliatory discharge. See id. at 6–7 (Count III). Defendants move for summary
judgment on all counts of the complaint. [44].11
III.

Analysis
A.

Steven O’Donnell’s FLSA Claim (Count I)

Steven alleges that America at Home terminated his employment because he
refused to pay back overtime that he claims to have lawfully earned. See [1] ¶¶ 6–15
(Count I). This action, says Steven, violated the anti-retaliation provision of the Fair
Labor Standards Act. See id. ¶ 15(A) (citing 29 U.S.C. § 215(a)(3)).
Section 215(a)(3) of the FLSA prohibits employers from discharging an
employee because that employee “has filed any complaint or instituted or caused to
be instituted any proceeding under or related to” that chapter of the Act. 29 U.S.C.
§ 215(a)(3). Retaliation may be demonstrated using either the direct or indirect
method of proof. See Kasten v. Saint-Gobain Performance Plastics Corp., 703 F.3d
966, 972 (7th Cir. 2012) (citing Cichon v. Exelon Generation Co., L.L.C., 401 F.3d
803, 810 (7th Cir. 2005)). Under the direct method, a prima facie case of retaliation
is established where the plaintiff has shown: (1) that he engaged in protected
In their complaint, plaintiffs allege that Steven was never paid for two weeks’ worth of
overtime (between May 16 and May 25, 2011), and request in Count I a judgment that
defendants violated the FLSA by failing to pay Steven for those work hours. See [1] ¶¶ 13,
15(A). Neither party’s summary-judgment brief addresses this portion of Steven’s FLSA
claim, however, so I do not discuss it here.
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expression; (2) that he suffered an adverse employment action; and (3) that there
exists a causal link between the two. See id. (citing Stone v. City of Indianapolis
Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002)).12 Defendants do not dispute that
Steven O’Donnell suffered an adverse employment action. They instead argue that
Steven cannot make out a prima facie case of retaliation because he has not shown
that he engaged in any protected activity, and because, even if he did engage in
protected activity, he still has not shown that the defendants fired him because of
that activity. See [45] at 3–8. Neither argument is persuasive.
To have engaged in protected activity under Section 215(a)(3) of the FLSA,
Steven must have filed a complaint, or instituted or caused to be instituted any
proceeding, under or related to the Act. See 29 U.S.C. § 215(a)(3). Complaints “filed”
under Section 215 need not be in writing. See Kasten v. Saint-Gobain Performance
Plastics Corp., — U.S. —, 131 S.Ct. 1325, 1335 (2011). Oral complaints qualify, as
long as they give the employer “fair notice that the employee is invoking rights
under the FLSA.” Kasten, 703 F.3d at 975 (citing Kasten, 131 S.Ct. at 1334)
(internal quotation marks omitted). The fair-notice standard is an objective one. See
id. at 976 (citation omitted). Thus, an employer has received fair notice of an FLSA
complaint if a reasonable employer in the same circumstances, “armed with [the]
Under the indirect method, a prima facie case of retaliation is established where the
plaintiff shows that after lodging a complaint about his rights, only he—and “not any
otherwise similarly situated employee who did not complain”—suffered an adverse
employment action even though he was otherwise performing his job satisfactorily. See
Treadwell v. Office of Ill. Sec’y of State, 455 F.3d 778, 782 (7th Cir. 2006) (discussing
retaliation under Title VII of the Civil Rights Act) (citation omitted). Steven does not allege
that similarly situated individuals were treated differently, so he proceeds under only the
direct method of proof.
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knowledge of the relevant context,” would have understood the complaint to be an
assertion of rights protected by the FLSA. Id. at 975–76 (citations omitted).
The FLSA mandates that employees be compensated for their work,
including overtime work. See 29 U.S.C. §§ 206(a), 207(a). Declining to pay
employees for wages due to them under the Act—or, similarly, requiring employees
to return wages duly earned under the Act—is a violation of the statute. Put
succinctly, employers cannot (lawfully) demand that their employees work for free.
But suppose that an employer does make such a demand. If the employee refuses to
comply, he has engaged in activity protected by the FLSA. A refusal to work for free
is an assertion of one’s right to compensation under the statute—and, thus, a
complaint “filed” within the meaning of the Act. See Wilke v. Salamone, 404
F.Supp.2d 1040, 1048 (N.D. Ill. 2005); cf. Hernandez v. City Wide Insulation of
Madison, Inc., 508 F.Supp.2d 682, 692 (E.D. Wis. 2007) (stating that the FLSA
protects those who complain about unpaid overtime (citing Skelton v. Am.
Intercont’l Univ. Online, 382 F.Supp.2d 1068, 1076 (N.D. Ill. 2005))).
An employer who receives such a complaint finds themselves in deeper water
if, because of that complaint, they fire the employee who made it. Congress enacted
FLSA’s anti-retaliation provision in order to shield employees from having to make
an unreasonable choice between standing on their labor rights and saving their
jobs. See Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292–93 (1960).
Thus, discharging an employee because he refuses to provide free labor is
retaliation under the FLSA. See Wilke, 404 F.Supp.2d at 1048; Brennan v. Maxey’s

13

Yamaha, Inc., 513 F.2d 179, 180–83 (8th Cir. 1975); see also Marshall v. Parking
Co. of America-Denver, Inc., 670 F.2d 141, 142–43 (10th Cir. 1982) (finding a
Section 215(a)(3) violation where the employee was discharged for refusing to
release their claim to back pay); Wirtz v. Ross-Packaging Co., 367 F.2d 549, 550 (5th
Cir. 1966) (similar).
The threshold question here is: Did defendants demand that Steven
O’Donnell work for free? Steven was paid for 477.5 hours of overtime work between
December 2009 and May 25, 2011. Steven claims that he worked all of those hours,
see [70] at 5 ¶¶ 12, 13, and there is evidence suggesting that defendants had at least
constructive knowledge that he did so. Under the FLSA, employers have a duty to
inquire into the conditions prevailing in their businesses—and therefore have a
duty to compensate their employees for work time of which the employer was
aware, if only constructively. See Kellar v. Summit Seating, Inc., 664 F.3d 169, 177–
78 (7th Cir. 2011); see also 29 C.F.R. § 785.11 (time is “working time” and thus
compensable time under the FLSA if the employer “knows or has reason to believe
that [the employee] is continuing to work”) (citations omitted). Here, Taylor
purportedly told Steven on at least two occasions (once in the fall of 2009, and again
in April 2010) that Steven could work overtime, see [70] at 6 ¶ 16. And several
months after the second of those two instances, when Steven told Taylor that he
was “still working overtime,” Taylor responded: “Yes, I know[;] you’re doing a good
job, keep it up.” Steven Deposition, [49] at 43, Tr. at 41:14–:20. The evidence also
indicates that at times, Taylor actually witnessed Steven working the overtime. See

14

[70] at 7 ¶ 20. Steven submitted time sheets accounting for his overtime hours, as
well. See Steven Deposition, [49] at 104–05, Tr. at 102:24–103:7; see also [69-7]
(time-sheet records). Drawing all inferences in plaintiffs’ favor, a reasonable juror
could conclude from this evidence that defendants were at least constructively
aware of Steven’s overtime work—and, consequently, that Steven lawfully earned
those wages under the FLSA.
Moreover, there is evidence that defendants required Steven to return those
wages as a condition for keeping his job. According to Steven, when Taylor
approached him on June 3 about the overtime payments, Taylor said that Steven
could keep his job only if he gave back those payments. See [70] at 8 ¶ 23. Taylor
reiterated this demand when the two met again the next Monday (June 7) by
presenting to Steven a document requiring him to relinquish his overtime pay. See
id. ¶ 24. If Steven lawfully earned his overtime wages, as just discussed, then the
conditioning of his continued employment on a return of those wages was, in effect,
a demand that Steven work for free. It is no matter that the demand came after
Steven’s work had been completed and his wages paid. Steven was entitled to retain
any payments rightfully earned under the FLSA; a demand for their return was a
retroactive demand for free labor.
There is also evidence that Steven refused to comply with defendants’
demand, and thus engaged in activity protected by the FLSA. When Taylor asked
Steven (on June 7) to sign a document requiring him to return his overtime
payments, Steven refused. See id. And Steven refused again when Taylor made

15

clear that if he did not capitulate, Steven “could lose [his] job.” Steven Deposition,
[49] at 62, Tr. at 60:8–:9. Instead of agreeing to return his wages, Steven instead
told Taylor that Steven had earned those wages and that Taylor was violating the
law. See [70] at 8–9 ¶ 25. A reasonable employer in these circumstances would have
understood that Steven was asserting his right to be paid for his work, and so was
asserting his rights under the FLSA. (Indeed, Steven claims he referred to a
violation of the FLSA specifically. See Steven’s Deposition, [49] at 112, Tr. at
110:22–:24.)13
The next question is whether there is evidence suggesting that Steven was
fired from his job because he asserted his FLSA rights. Steven, in other words, must
establish causation. To demonstrate a causal link between his protected expression
and his termination from America at Home, Steven must show that defendants
would not have fired him but for his protected activity. See Greengrass v. Int’l
Monetary Sys. Ltd., — F.3d —, 2015 WL 137891, at *4 (7th Cir. Jan. 12, 2015)
(quoting King v. Preferred Technical Grp., 166 F.3d 887, 892 (7th Cir. 1999)). “But
for” causation may be shown through direct or circumstantial evidence. See Kasten,
703 F.3d at 972. Direct evidence is evidence that, if believed, “will prove the
particular fact in question without reliance upon inference or presumption.” Id. at
972–73 (quoting Volovsek v. Wis. Dep’t of Agric., Trade & Consumer Prot., 344 F.3d
It is unclear from Steven’s deposition testimony when, precisely, he talked about an
FLSA violation. But as discussed above at footnote 5, the evidence permits a reasonable
inference that Steven told Taylor on the morning of June 7 that Taylor was violating the
law. A reasonable juror could in turn conclude that it was at that same time that Steven
referred to the FLSA in particular.
13

16

680, 689 (7th Cir. 2003)). In practice, direct evidence typically requires an
admission by the employer that they were motivated by a discriminatory (or, in this
case, retaliatory) animus; such evidence is rare. See, e.g., Greengrass, 2015 WL
137891, at *4 (citing Benders v. Bellows & Bellows, 515 F.3d 757, 764 (7th Cir.
2008)); Volovsek, 344 F.3d at 689. Circumstantial evidence, by contrast, permits a
reasonable juror to infer retaliation, and may include: suspicious timing, ambiguous
statements or behavior; evidence that similarly situated employees were treated
differently; or evidence that the reason given for an adverse employment action was
merely a pretextual one. See Kasten, 703 F.3d at 973 (citing Volovsek, 344 F.3d at
689–90).
Steven does not present direct evidence of retaliation. There is, however,
sufficient circumstantial evidence to permit a reasonable inference that Steven was
fired because of his protected expression—that is, because he refused to surrender
his overtime wages.
As discussed above, Steven was told (by Taylor) on June 3, 2011, that Steven
would lose his job unless he agreed to pay back his overtime earnings from
December 2009 to May 2011. At approximately 9:30 a.m. four days later (on June
7), Steven refused to comply with this demand. See Steven Deposition, [49] at 59–
62, Tr. at 57–60. And only three hours later, Steven was fired. See id. at 62, Tr. at
60. The timing of Steven’s termination is at the very least suspicious, and thus
supports Steven’s theory that he was terminated because of his protected
expression. See Kasten, 703 F.3d at 973 (noting that an inference of causation might

17

be drawn where an employee is terminated only a few hours after asserting his
rights under the FLSA (citing Lalvani v. Cook Cnty., Ill., 269 F.3d 785, 790 (7th Cir.
2001))).
Mere proximity in time between an employee’s protected activity and his
subsequent termination is rarely enough to defeat summary judgment, however.
See id. at 974 (citing Stone, 281 F.3d at 644). But more than just suspicious timing
is evident here. Recall that on the morning of June 7, 2011, Taylor purportedly told
Steven that he (Steven) could be fired if he would not agree to return his overtime
payments. More specifically, though, Steven claims that Taylor said: “[I]f I take this
[refusal] back to the ladies, [and] they don’t like it, you could lose your job.” Steven
Deposition, [49] at 62, Tr. at 60. Taylor’s alleged reference to “the ladies” (i.e., the
company’s owners) is important, because when Taylor did fire Steven at 12:30 p.m.
that afternoon, Taylor also said that he had “presented” (to someone) that Steven
would not return the overtime—the implication being that, after his morning
meeting with Steven, Taylor did indeed notify the owners of Steven’s refusal to
relinquish his wages. And, when firing Steven (at 12:30 p.m.), Taylor also
purportedly said that “it was [Steven’s] choice.” Id. Drawing all inferences in
plaintiffs’ favor, these facts plausibly suggest that not only did defendants intend to
fire Steven if, in the face of their demand, he chose to assert his rights under the
FLSA, but that they actually carried out this intent. Thus, there is enough evidence
of a causal link between Steven’s protected activity and his termination to move
Steven’s retaliation claim past summary judgment.

18

Defendants contend that Steven has not shown causation because he was in
fact terminated on June 3, 2011 (not on June 7, as plaintiffs claim). See [45] at 5.
According to defendants, the owners of America at Home discussed Steven’s
overtime situation during a phone conversation in May 2011,14 and decided at that
time that Steven would be discharged. See [46] at 6 ¶ 34 (citing Fitzpatrick
Deposition, [51] at 34, 56–57, Tr. at 32, 54–55). Taylor then executed that decision,
say defendants, by firing Steven on June 3, 2011. See id. ¶¶ 35–37. If Taylor truly
did terminate Steven on June 3—days before Steven engaged in any protected
activity—then his discharge could not have been because of that activity.
As defendants point out, plaintiffs did allege in their complaint that on June
3, 2011, Taylor told Steven that he “would have to let [Steven] go.” See [45] at 5; [46]
at 6 ¶ 37 (citing Complaint, [1] ¶ 10); [1] at 3 ¶ 10. Allegations in a complaint are
binding on the party that made them, see D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d
681, 686 (7th Cir. 2013) (citation omitted). And Taylor’s statement on June 3 does
suggest, as defendants urge, that the owners had already decided to fire Steven as
of that date. But this evidence does not establish that Steven actually was
terminated on that date. Steven claims that during that same meeting, after he
protested that he had worked all of the overtime (and that Taylor had approved it),
Taylor made a phone call to Fitzpatrick,15 and then said (to Steven) that Steven

See Fitzpatrick Deposition, [51] at 27, Tr. at 25:1–:13 (explaining that in May 2011
Fitzpatrick talked to Greg Taylor about the overtime); id. at 32, Tr. at 30:19–:23 (stating
that she talked to the owners that same day).

14

15

See Taylor Deposition, [50] at 29, Tr. at 108:8–:9.

19

could keep his job if he repaid those wages. See [70] at 8 ¶ 23. Even if the owners
had decided before June 3 to terminate Steven, this evidence suggests that the
owners reconsidered that decision—in favor of a new approach—when Steven
denied any wrongdoing: Steven could keep his job, but only if he agreed to return
his overtime payments. Thus, a reasonable juror could conclude that Steven was not
actually discharged on June 3, as defendants urge.
Even if Steven was not in fact fired on June 3, argue defendants, his
retaliation claim nonetheless fails because the owners formed the intent to fire him
before he engaged in any protected expression. See [45] at 6. Where an employer has
contemplated discharging its employee before learning that he engaged in any
protected activity, the employer typically may proceed with that termination
without violating Section 215(a)(3) of the FLSA. See Cichon, 401 F.3d at 811
(“[P]roceeding along lines previously contemplated . . . is no evidence whatever of
causality.” (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001))).
But such reasoning does not apply where, as here, the record plausibly indicates
that the employer’s “previously contemplated” plans include an intent to fire the
employee if and only if he asserts his protected rights. An employer who demands
that their employee work for free, and who intends to terminate that employee if he
refuses to do so, cannot escape the reach of Section 215(a)(3) by pointing to evidence
that their intent to terminate was formed before any protected expression actually
occurred. In such instances, the intent to terminate is in effect an intent to
retaliate, and so is evidence of causation. Here, plaintiffs have presented evidence

20

sufficient to suggest that defendants intended to fire Steven unless he agreed to
relinquish his overtime payments, and then fired him because he would not so
agree. This is enough to establish a causal link between Steven’s protected activity
and his termination.
Defendants next contend that Steven’s retaliation claim cannot proceed
because he has not demonstrated that those who decided to fire him (i.e., the
company’s owners) were even aware of his protected expression. To show causation,
a plaintiff claiming retaliation must show that the person(s) who decided to
terminate him knew about his protected activity. See Hayes v. Potter, 310 F.3d 979,
982–83 (7th Cir. 2002) (citing Maarouf v. Walker Mfg. Co., 210 F.3d 750, 755 (7th
Cir. 2000). Defendants here argue that Steven has failed to make this showing
because the only person with whom Steven ever spoke about the overtime issue,
and thus the only person to whom Steven allegedly “complained” about his FLSA
rights, was Taylor. See [45] at 7. But defendants overlook evidence that Taylor
himself told the owners about Steven’s complaint.
As discussed above, Steven claims to have spoken with Taylor at two
different times on June 7, 2011: once in the morning (around 9:30 a.m.), and again
in the early afternoon (around 12:30 p.m.). It was during the morning meeting that,
according to Steven, Taylor said Steven could lose his job if Taylor spoke to the
owners about Steven’s refusal to return the overtime pay. When Taylor approached
Steven again that afternoon, not only did Taylor suggest that he had communicated
Steven’s protest to the owners (as discussed above), but one of the owners

21

(Fitzpatrick) was actually standing nearby. See Steven Deposition, [49] at 62, Tr. at
60. Viewing these facts in plaintiffs’ favor, a reasonable juror could infer that the
owners of America at Home did know about Steven’s complaint, and that they knew
about the complaint before instructing Taylor to fire Steven on June 7.16
Steven has presented enough evidence to make out a prima facie case of
retaliation, and his claim must be tried unless defendants can present unrebutted
evidence that Steven would have been fired absent any protected expression. See
Benders, 515 F.3d at 764 (citing Stone, 281 F.3d at 644). Defendants argue that they
have provided such evidence, pointing to deposition testimony in which Taylor
claims that Steven was fired because he requested and received payment for more
than 470 hours of overtime that was not approved. See [45] at 8 (citing Taylor
Deposition, [50] at 26, Tr. at 93–94). If defendants truly believed that they did not
authorize Steven’s overtime work, then even if they did demand that he return
those payments, Steven’s protected expression was not a but-for cause of his
termination. His refusal to return wages was not, in other words, a refusal to work
for free, but—at least in defendants’ eyes—a refusal to comply with company policy
Moreover, defendants may still be liable for retaliation even if they did not learn of
Steven’s protected expression before Taylor actually fired him. In a typical retaliation case,
it is true that in order to prevail on his claim, the plaintiff must show that the relevant
decision-maker knew about his protected expression. If the decision-maker did not know
about the protected expression, then how could it be that she fired the employee because of
it? But that is precisely what occurs when an employer’s intent to terminate is in itself an
intent to retaliate. Suppose, for example, that a business owner told one of her managers,
“If an employee ever complains about an FLSA violation, fire him on the spot.” In this
scenario, the owner would not have learned of the protected expression before making the
decision to terminate, but she would be no less liable for retaliation. Employers, in other
words, cannot lawfully condition a worker’s employment status on his agreement not to
assert his protected rights.
16

22

(i.e., insubordination). Discharging an employee for insubordination is not
retaliation. See Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 478 (7th Cir. 2010).
In this case, company policy did require a manager’s approval for any
overtime worked. See [69] at 4 ¶ 21. But defendants have not presented
uncontradicted evidence that they genuinely believed Steven’s overtime hours were
unapproved. Taylor testified that they were not, but, as discussed previously, there
is evidence suggesting that Taylor did approve at least some of those hours—
especially those pertaining to a particular project called the “Care Anywhere”
project. See [70] at 6 ¶¶ 16–17. According to plaintiffs, Taylor told Steven in April
2010 that he could work overtime to assist with this project, which involved
bringing the company into compliance with certain requirements as identified by
Lisa Skopick, another America at Home employee. See id. ¶ 16. Steven claims that
he was still working overtime on those same compliance issues as of June 2011,
when he was terminated, see id. ¶ 18. In any event, Skopick confirmed that the
Care Anywhere project lasted for at least for a few months (through June 2010),
and that Taylor did authorize Steven to work overtime during those months. See id.
¶ 17.
The evidence also suggests that before the owners of America at Home made
even their initial decision to terminate Steven (i.e., the decision they claim to have
made prior to Taylor’s first meeting with Steven on June 3, 2011), they, too, knew
that Taylor had approved Steven to work on the Care Anywhere project. See
Fitzpatrick Deposition, [51] at 27–28, Tr. at 25–26 (testifying that Fitzpatrick asked

23

Taylor in May 2011 if he had approved any of Steven’s overtime, and that Taylor
said he had approved work for a project the previous year). Even assuming that the
Care Anywhere project lasted only from April through June 2010, as Lisa Skopick
recalled—and assuming (in plaintiffs’ favor) that the only overtime hours Steven
claimed for those months were hours worked on that specific project—then
defendants knew, at a minimum, that Taylor had approved more than 100 hours of
Steven’s overtime. See [69-7] at 5–17 (Steven’s time sheets from April 3, 2010 to
June 26, 2010). This evidence casts doubt on defendants’ assertion that they
genuinely believed Steven’s overtime work was unauthorized.
There exists a genuine issue of fact concerning whether the owners of
America at Home fired Steven for insubordination (as defendants urge), or for
refusing to work for free (as plaintiffs claim). Where there are conflicting indications
of motive and intent, summary judgment is inappropriate. See Kasten, 703 F.3d at
974 (citation omitted). Defendants’ motion for summary judgment on Count I of
plaintiffs’ complaint is therefore denied.
B.

Amy O’Donnell’s FLSA Claim (Count II)

Steven’s wife Amy also worked for defendants before she, too, was fired from
her position. Amy was let go on June 29, 2011, just a few weeks after Steven was
terminated. See [69] at 11 ¶ 48. Defendants claim that they terminated Amy
because they believed that she and Steven (when he was still working there) had
used company funds to pay off Amy’s 401(k) loans, and so had stolen money from
America at Home. See [45] at 10–11; see also [69] at 11 ¶ 47. Amy, on the other

24

hand, claims that she was fired because of her relationship with Steven, and in
(further) retaliation against Steven for having asserted his FLSA rights. See [68] at
10–12.
As Amy does not contend that she herself engaged in any activity protected
by the FLSA, she proceeds not under the traditional theory of retaliation (as
addressed above) but under the zone-of-interests theory as articulated in Thompson
v. N. Am. Stainless, LP, 562 U.S. 170, 131 S.Ct. 863 (2011). In Thompson, the
Supreme Court confronted a case in which an employee’s fiancé (also an employee
with the same company) was fired after the former filed with the Equal
Employment Opportunity Commission a complaint alleging sex discrimination. See
131 S.Ct. at 867. The discharged fiancé then filed a claim of retaliation under Title
VII of the Civil Rights Act. See id. The Court concluded that, even though the fiancé
himself had not engaged in any protected activity, his retaliation claim could go
forward because: (1) firing a person’s fiancé could dissuade her from engaging in
activity protected by Title VII, see id. at 868 (discussing the test for “adverse
employment action” as articulated in Burlington N. & S.F.R. Co. v. White, 548 U.S.
53 (2006)); and (2) the fiancé was not an “accidental victim” of the employer’s
retaliation against the worker who had complained, and so he fell within the “zone
of interests” protected by Title VII, see id. at 870. Defendants here argue that
Thompson does not support Amy’s retaliation claim because Steven did not engage
in any protected expression (and so Amy cannot have been fired because of any such

25

expression), and because defendants have otherwise provided a non-retaliatory
reason for letting her go. See [45] at 9–11. Both arguments are unavailing.
First, while it is defendants’ position that Steven never asserted his rights
under the FLSA, this position is contradicted by evidence discussed above in
relation to Steven’s retaliation claim. There are issues of fact surrounding Steven’s
allegedly protected activities, and so summary judgment may not be awarded on
this ground.
Defendants argue next that even if Steven did engage in protected activity,
Amy’s claim still does not satisfy Thompson because defendants have offered a nonretaliatory reason for her discharge: she and Steven were stealing money from the
company to pay off Amy’s 401(k) loan. Thus, say defendants, Steven’s protected
expression (if any) could not have been the but-for cause of Amy’s termination. See
id. at 10–11. But there is evidence to rebut this contention, too.
Before Amy was fired, she delivered (on Steven’s behalf) a request to America
at Home for a copy of Steven’s personnel file. That request included specifically a
request for the document that Steven claims Taylor presented to him on the
morning of June 7, 2011—i.e., the document purportedly requiring Steven to
relinquish his overtime payments as a condition for keeping his job. See [70] at 10
¶¶ 29–30; Exhibit 9 to Plaintiffs’ Local Rule 56.1 Statement, [69-9] at 2 (Steven’s
written request). Amy was fired five days later. See [70] at 10 ¶ 29; 13 ¶ 38. The
timing of Amy’s termination is certainly suspicious. And other circumstantial
evidence weighs in her favor, too—for example, Taylor’s statement to another

26

employee that Amy was fired because she helped Steven request his personnel
records. See [70] at 13 ¶ 38; Heckler Declaration, [69-15] at 2 ¶ 3. Taylor’s comment
not only suggests an inconsistency in defendants’ explanation for why Amy was
fired—which in itself can be suggestive of pretext, see Kasten, 703 F.3d at 974
(citation omitted); Vaughn v. Vilsack, 715 F.3d 1001, 1008 (7th Cir. 2013) (citations
omitted)—but also connects Amy’s termination with Steven’s protected behavior. If
defendants fired Amy in order to further punish Steven for asserting his right to be
paid, this was retaliation under Thompson. See 131 S.Ct. at 870 (explaining that
employers cannot lawfully injure one employee as means to punishing another).17
What’s more, Amy was not the only employee whose 401(k) loan payments
were accelerated. Steven used company funds to accelerate loan payments for
Andrea Castrajon and Michelle Buissereth-Reed, as well. See [69] at 6 ¶ 27. Of
these three employees, however, Amy was the only one who was fired. Castrajon
and Buissereth-Reed were instead allowed to reimburse America at Home for the
payments made on their behalf. See [70] at 12–13 ¶ 37. Evidence suggesting that

In their reply brief, defendants argue that Thompson does not support Amy’s retaliation
claim since that case permits third-party retaliation claims to proceed only where the
employee who engaged in protected activity was punished solely through actions taken
against a third-party employee. See [71] at 9–10. Amy’s claim cannot meet this test, say
defendants, because Steven was fired before Amy was: if Steven was punished at all, he
was punished directly. See id. at 9. But Thompson is not so limited. While true that the
employee-complainant in Thompson was punished only through the termination of her
fiancé (and not directly), there is no language in the opinion suggesting that if the employer
had also punished the complainant directly, it no longer would have been liable to the
fiancé. Thompson explains that employers cannot harm one employee to punish another. If
defendants here attempted to punish Steven by firing his wife—even if that injury was
merely a continuation of the punishment already imposed by his own termination—
defendants are liable to Amy for retaliation.
17

27

similarly situated employees were treated differently is also circumstantial evidence
of retaliation. See Kasten, 703 F.3d at 973.
Taking the above facts as true, and drawing all inferences in plaintiffs’ favor,
the evidence raises a genuine issue of fact as to the true reason for Amy O’Donnell’s
termination. A reasonable juror could conclude from this evidence that defendants
fired Amy to exact further punishment on Steven for having refused to give back his
overtime payments, and that the reason defendants now offer for her discharge—
taking money to pay back her 401(k) loan more quickly—is mere pretext. In light of
this factual issue, Amy’s retaliation claim must proceed to trial.
Defendants’ motion for summary judgment on Count II of the complaint is
therefore denied.
C.

Plaintiffs’ Retaliatory Discharge Claim (Count III)

Both plaintiffs bring a retaliatory-discharge claim under Illinois common law.
See [1] at 6–7 (Count III). The cause of action for retaliatory discharge is “a narrow
and limited exception to the employment-at-will doctrine” in Illinois. Brooks v.
Pactiv Corp., 729 F.3d 758, 767 (7th Cir. 2013) (citing Zimmerman v. Buchheit of
Sparta, Inc., 164 Ill.2d 29 (1994); Paz v. Commonwealth Edison, 314 Ill.App.3d 591
(2000); Beatty v. Olin Corp., 693 F.3d 750, 753 (7th Cir. 2012)). To recover for
retaliatory discharge, the plaintiff must prove: (1) they were fired (2) in retaliation
for their activities, and (3) the discharge violated a “clearly mandated public policy.”
Reid v. Neighborhood Assistance Corp. of Am., 749 F.3d 581, 586 (7th Cir. 2014)
(citing Palmateer v. Int’l Harvester Co., 85 Ill.2d 124 (1981)).

28

A clearly mandated public policy “concerns what is right and just and what
affects the citizens of the State collectively,” as is found in the State’s constitution,
statutes, and judicial decisions. See Palmateer, 85 Ill.2d at 130 (citation omitted). It
is a matter that “strike[s] at the heart of a citizen’s social rights, duties, and
responsibilities.” Id. Such matters include seeking compensation pursuant to the
Workers’ Compensation Act, see Kelsay v. Motorola, Inc., 74 Ill.2d 172, 181–82
(1978), and reporting an employer’s criminal activity (i.e., “whistle-blowing”), see
Palmateer, 85 Ill.2d. at 132–33. But after first recognizing and defining the tort of
retaliatory discharge in Kelsay and Palmateer, the Illinois Supreme Court began to
express a reluctance to extend the doctrine any further. See Sutherland v. Norfolk
S. Ry. Co., 356 Ill.App.3d 620, 625 (2005) (collecting cases).
Neither whistle-blowing nor a workers’-compensation claim is at issue here:
Steven and Amy claim to have been terminated because Steven asserted his right to
be paid for his work. If defendants fired Steven and Amy because of this assertion,
did their terminations violate a clearly mandated public policy of Illinois? Counts I
and II of the complaint concern federal wage law, as discussed above, but there is a
parallel state statute—the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq.,—
that also requires workers be paid for their labor, including overtime. See id. at
105/4(a)(1) (minimum hourly wage); id. at 105/4a(1) (overtime wage). In Robbins v.
City of Madison, the Illinois Court of Appeals observed that if an employee was
discharged for refusing to work for wages less than those set forth in the Act, the
court “believe[d] that . . . his discharge would . . . violate a clear mandate of [Illinois]

29

public policy.” 193 Ill.App.3d 379, 383 (1990) (discussing Section 2 of the IMWL,
which provides that it is against public policy for an employer to pay his employees
an amount less than that fixed by the Act) (internal quotation marks omitted). But
the language in Robbins was dictum: the appellate court affirmed the lower court’s
dismissal (with prejudice) of the plaintiff’s claims. See id. at 385. Moreover, the
Illinois courts have since reaffirmed, repeatedly, their desire to limit the reach of
the retaliatory-discharge doctrine. See, e.g., Metzger v. DaRosa, 209 Ill.2d 30, 44
(2004) (“[T]his court has consistently sought to restrict the common law tort of
retaliatory discharge.” (citing Fisher v. Lexington Health Care, Inc., 188 Ill.2d 455,
467 (1999))); Irizarry v. Ill. Cent. R.R. Co., 377 Ill.App.3d 486, 490 (2007) (“[A]s the
law stands today, the tort of retaliatory discharge is available only under two
situations: (1) where the discharge stems from exercising rights pursuant to the . . .
Workers’ Compensation Act . . . or (2) where the discharge is for ‘whistleblowing’
activities . . . .” (citing Jacobsen v. Knepper & Moga, P.C., 185 Ill.2d 372 (1998);
Sutherland, 356 Ill.App.3d at 626)); Sutherland, 356 Ill.App.3d at 626 (same)
(citations omitted); Chicago Commons Ass’n v. Hancock, 346 Ill.App.3d 326, 328–29
(2004) (similar) (citing Jacobsen, 185 Ill.2d at 376); Shakboua v. City of Chicago, No.
1-13-1804, 2014 IL App (1st) 131804-U, at *4 (Ill. App. Ct. Oct. 14, 2014) (similar)
(citations omitted).
Of particular significance here is that courts in Illinois have explicitly refused
to apply the tort of retaliatory discharge to terminations based on an employee’s
assertion of rights under the Illinois Wage Payment and Collection Act. See, e.g.,

30

Chicago Commons, 346 Ill.App.3d at 330 (discussing McGrath v. CCC Info. Servs.,
Inc., 314 Ill.App.3d 431 (2000)). Wage disputes, the courts have found, involve
personal matters that do not implicate the State’s clearly mandated public policy.
See id. (citing Zientara v. Long Creek Twp., 211 Ill.App.3d 226, 244 (1991)). Such
“wage disputes” include an employer’s threat to deduct from future wages a
worker’s alleged overpayment, see id. (discussing Kavanagh v. KLM Royal Dutch
Airlines, 566 F.Supp. 242 (N.D. Ill. 1983))—a situation not too dissimilar from the
one presented here.
In light of the state courts’ express admonition against expanding the
retaliatory-discharge doctrine, and in light of their decision not to extend the
doctrine into wage-related disputes specifically, I conclude that plaintiffs may not
bring an action for retaliatory discharge based on an assertion of rights protected by
the IMWL. Accord Wilke, 404 F.Supp.2d at 1049–50; Trochuck v. Patterson Cos.,
Inc., 851 F.Supp.2d 1147, 1151 (S.D. Ill. 2012) (citing Wilke, 404 F.Supp.2d at
1049)).
A closer inspection of the IMWL itself also supports this conclusion. Where,
as here, a plaintiff asserts that he was fired because he asserted rights protected by
state statute, permitting a tort-based action for retaliatory discharge is akin to
implying from the statute a private right of action for the discharge. Cf. Metzger,
209 Ill.2d at 44–45; Sutherland, 356 Ill.App.3d at 629. The Illinois Supreme Court
has enumerated several factors to consider when determining whether a private
right of action may be implied from a state statute, including: (1) whether a private

31

right of action is consistent with the statute’s underlying purpose; and (2) whether a
private right of action is necessary to provide an adequate remedy for violations of
that statute. See Sutherland, 356 Ill.App.3d at 629 (quoting Metzger, 209 Ill.2d at
36).
A private right of action for retaliatory discharge would not be consistent
with the intent of the Illinois General Assembly in drafting the IMWL. The
legislature expressly provided for a private action to recover underpayments, but
did not provide for such an action for discharging an employee for complaining
about his IMWL rights. 820 ILCS 105/12(a). This strongly suggests that the
legislature did not intend to imply a private right of action. See Metzger, 209 Ill.2d
at 44 (discussing the expressio unius maxim of statutory interpretation).18
Moreover, there is no need to imply from the IMWL a private right of action here,
since plaintiffs already have an adequate remedy: resort to the FLSA. A state-law
retaliatory-discharge claim is, in effect, superfluous.
Relying on Reske v. City of Chicago, No. 85 C 4681, 1986 WL 899 (N.D. Ill.
Jan. 10, 1986), plaintiffs argue that a common-law claim of retaliatory discharge
nonetheless should be permitted in this case because Illinois public policy favors
uncovering unlawful terminations—especially where those terminations involve
violations of Illinois law. See [68] at 14. Plaintiffs’ reliance on Reske is misguided.
Reske involved the termination of an attorney who worked for the City of Chicago

Expressio unius est exclusio alterius means, “the expression of one thing is the exclusion
of another.” Metzger, 209 Ill.2d at 44 (quoting Black’s Law Dictionary 581 (6th ed. 1990)).
18

32

(Robert Reske), who was fired after he signed an affidavit stating that he believed
another employee (Howard Shlay) had been unfairly discharged because of his age.
See 1986 WL 899, at *3. Critical to the district court’s analysis was the fact that, in
the court’s view, Reske’s actions paralleled the “whistle-blowing” activities
discussed by the Illinois Supreme Court in Palmateer. See id. at *4 (citing
Palmateer, 85 Ill.2d at 132–33). In both instances, the plaintiff had reported his
employer’s allegedly unlawful behavior—in Palmateer, to a law-enforcement agency;
in Reske, to the court adjudicating Shlay’s lawsuit against the City. But plaintiffs
here do not claim that Steven was fired because of any such reporting. They instead
allege that Steven was fired because he complained about his overtime wages.
Moreover, Reske is not a recent case, and subsequent Illinois case law makes clear
that the scope of the retaliatory-discharge action is exceedingly narrow.
Plaintiffs also rely on Ladegaard v. Hard Rock Concrete Cutters, Inc., No.
00 C 5755, 2001 WL 1403007 (N.D. Ill. Nov. 9, 2001), for the proposition that
requiring an employee to relinquish a valid claim to wages violates Illinois public
policy, and thus supports a claim for retaliatory discharge under Illinois common
law. See [68] at 14. Ladegaard does refer to the IMWL and IWPCA as involving
“public rights.” See 2001 WL 1403007, at *6 (citations omitted). But Ladegaard does
not address whether the matters of public concern as reflected in those statutes are
also “clearly mandated” public policies within the meaning of Kelsay and its
progeny.

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At issue in Ladegaard was whether, as a matter of contract law, certain
private agreements (written waivers of plaintiffs’ claims to back pay) were
unenforceable because they abrogated wage laws involving public rights. See id. at
*1, *6. The “public rights” on which the court based its decision were not the same
kind of rights that Steven claims to have asserted before he was fired. The IMWL
provides that if an employee has not collected damages for an underpayment of
wages, the Director of Labor may file an action (under Section 12(b)) to recover
those amounts. See 820 ILCS 105/12(b). In certain instances, the Illinois courts
have observed that civil actions brought by a state agency to enforce compliance
with a wage law, such as actions filed pursuant to Section 12(b) of the IMWL,
involve a public right. See People ex. rel. the Dep’t of Labor v. K. Reinke, Jr. and
Co./Reinke Insulation, 319 Ill.App.3d 721, 727, 746 N.E.2d 12, 16 (2001); People ex
rel. Martin v. Schwartz Oil Field Servs., Inc., 203 Ill.App.3d 903, 907, 561 N.E.2d
201, 203 (1990). It is on those cases that the district court in Ladegaard relied. See
2001 WL 1403007, at *6 (citing Reinke, 756 N.E. 2d at 16; Martin, 561 N.E.2d at
203). Moreover, Ladegaard concludes that both the IMWL and IWPCA involve
public rights, and so neither can be abrogated by private agreement. See id. But the
Illinois courts have made clear that an employer who discharges an employee for
asserting his rights under the IWPCA has not contravened a “clearly mandated”
public policy such that an action for retaliatory discharge is permitted. See Chicago
Commons, 346 Ill.App.3d at 330 (discussing McGrath, 314 Ill.App.3d 431). Such

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disputes, as discussed previously, are economic disputes that are personal in
nature. See id. (citations omitted).
As plaintiffs have not established that their terminations violated a clearly
mandated public policy of Illinois, they cannot, as a matter of law, proceed with
their common-law claim of retaliatory discharge. Defendants’ motion for summary
judgment on Count III of the complaint is therefore granted.
IV.

Conclusion
For the reasons discussed above, defendant’s motion for summary judgment,

[44], is granted in part and denied in part. The motion is granted insofar as it
pertains to Count III of plaintiffs’ complaint. The motion is denied insofar as it
pertains to Counts I and II of the complaint.
ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: 2/17/15

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