Brown v. Illinois Bell Telephone Company

Filing 32

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 1/19/2016: For the reasons stated in the accompanying decision, the Court dismisses plaintiff's claim under the IWPCA but otherwise denies defendant's motion to dismiss [dkt. no. 18]. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JEROME BROWN,

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Plaintiff,
vs.
ILLINOIS BELL TELEPHONE CO.
d/b/a AT&T Illinois,
Defendant.

Case No. 15 C 2709

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Jerome Brown has sued his former employer Illinois Bell Telephone Company
alleging violations of the Fair Labor Standards Act (FLSA), the Illinois Minimum Wage
Law (IMWL), and the Illinois Wage Payment and Collection Act (IWPCA). Brown
alleges that Illinois Bell improperly required him to work before and after his shifts and
through his lunch breaks without proper compensation. Illinois Bell has moved to
dismiss Brown's FLSA and IMWL claims to the extent they are based on allegations that
predate February 2011. Illinois Bell also moves to dismiss Brown's IWPCA claim on the
ground that it is preempted by federal law. The Court dismisses the IWPCA claim but
declines to dismiss any part of the FLSA claim.
Background
Brown was a cable splicer at Illinois Bell and was paid on an hourly basis.
Throughout his employment, he was typically scheduled to work eight-hour shifts.
Illinois Bell did not require employees to punch a clock to keep track of their working

hours. 2d Am. Compl. ¶ 24. Instead, the company required employees to report codes
for each discrete task they completed. Id. ¶¶ 25-26. Illinois Bell assigned a
predetermined amount of time to each discrete task. If an employee took longer than
the assigned time to complete a task, his efficiency rating went down. Id. ¶¶ 27-28.
Brown alleges that the available task codes did not account for all activities he
performed or hours he worked. For instance, he alleges that Illinois Bell regularly
required him to perform a variety of tasks before his scheduled shift, including checking
for supplies, reviewing blueprints and jobs, checking his email, and talking with his
manager. Brown estimates that he performed pre-shift work roughly three to five days
per week, depending on his work schedule, and that it took from twenty to thirty minutes
each time. Because those tasks did not have task codes, they were unaccounted for,
according to Brown. Id. ¶¶ 32-34.
Brown also alleges that Illinois Bell required its employees to report a thirtyminute lunch break, regardless of whether they actually took a lunch break or instead
kept working during that time. Id. ¶ 35. He alleges that he regularly worked through
lunch, completing a number of tasks that he contends were compensable, such as
securing and traveling between job sites, repairing equipment, and meeting with
customers. He alleges that he worked through lunch two to three times per week,
depending on the number of shifts he worked in a particular week. Id. ¶¶ 36-37.
Finally, Brown alleges that he performed, and was required to perform, work after
his shift ended for which he was not compensated. Specifically, he alleges that Illinois
Bell required cable splicers to return to the company garage no more than twenty
minutes before the end of the scheduled shift, irrespective of the amount of work the

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cable splicer needed to perform at the garage after returning. Id. ¶ 38. This included
paperwork which, Brown alleges, he often had to perform after the end of his scheduled
shift time because twenty minutes was not enough time to complete this work. Id. ¶ 39.
Brown says that he had to perform about fifteen minutes of post-shift work three days
each week. Id. ¶ 40.
Brown alleges that Illinois Bell knew that he performed uncompensated work. He
says that his former supervisors observed him performing work before and after his
shift. He further alleges that his supervisors encouraged the uncompensated work,
pressuring him to complete reportable discrete tasks without recording his time to
ensure that he met Illinois Bell's efficiency expectations. Id. ¶¶ 41-43, 45-53.
On January 17, 2011, a number of employees at Illinois Bell—not including
Brown—filed a suit against the company alleging violations of the Fair Labor Standards
Act (FLSA). See Blakes v. Ill. Bell Tel. Co., No. 11 C 336 (N.D. Ill.). The case was
originally assigned to now-retired Judge Blanche Manning. It was later reassigned to
Magistrate Judge Young Kim with the parties' consent.
The FLSA permits similarly situated employees to bring claims through a
collective action via an opt-in process. See Alvarez v. City of Chicago, 605 F.3d 445,
448 (7th Cir. 2010). Judge Kim conditionally certified a collective action on June 15,
2011 and allowed discovery to begin. Judge Kim's conditional certification included
claims relating to working through lunch breaks and post-shift work.
Brown opted into the Blakes case on August 31, 2011. The amended complaint
in that case, which was the operative version of the plaintiffs' complaint when Brown
opted in, contained a general allegation that Illinois Bell violated the FLSA by

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systematically failing to pay its cable splicers for all of the time they worked, including
overtime. In their more particularized allegations, the plaintiffs alleged that Illinois Bell
required its employees to complete unpaid work during lunch and after their shifts
ended, but they did not confine their claim to these contentions. See Blakes v. Ill. Bell
Tel. Co., No. 11 C 336, dkt. no. 11 ¶ 33 ("For these reasons and others, Plaintiffs and
similarly situated [sic] rarely work only 40 hours in a given week.").
On December 17, 2013, Judge Kim partially decertified the Blakes collective
action, allowing only claims regarding uncompensated post-shift work to move forward
collectively. He determined that aside from this, the plaintiffs' varied factual allegations
did not satisfy the commonality requirement for collective action suits. The plaintiffs
moved for Judge Kim to toll the statute of limitations to allow individual plaintiffs time to
determine whether to pursue their non-collective claims individually. The motion noted,
correctly, that Judge Kim's order had not ruled on the merits of any claims but rather
had concluded only that the decertified claims could not proceed collectively. Judge
Kim granted the plaintiffs' motion, staying the decertification order until February 28,
2014.
On February 28, 2014, Brown and several other opt-in plaintiffs from Blakes
joined to file Tinoco v. Illinois Bell Telephone Co., No. 14 C 1456 (N.D. Ill.). In Tinoco,
the plaintiffs asserted an FLSA claim based on the lunch break allegations originally
made in Blake and allegations that Illinois Bell required them to work before and after
their scheduled shifts. On March 24, 2015, Chief Judge Ruben Castillo ruled that the
plaintiffs' claims were not properly joined in a single suit and therefore severed the
claims of all of the plaintiffs except the first-named plaintiff in the second amended

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complaint. Judge Castillo ordered that each of the severed plaintiffs would be assigned
a separate docket number. He stated that if a severed plaintiff wanted to proceed with
his claims, he would have to file a separate amended complaint containing only his own
claims. Judge Castillo did not, however, dismiss any claims made by any plaintiff. On
July 30, 2015, Brown filed the complaint in this case.
Discussion
When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court
accepts the facts in the complaint as true and draws all reasonable inferences in favor
of the plaintiff. See Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934
(7th Cir. 2012). To survive a motion to dismiss, a complaint must contain allegations
that state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A claim is plausible on its face "when the plaintiff pleads factual content
that allows the Court to draw the reasonable inference that the defendant is liable for
the misconduct alleged." Id.
1.

FLSA and IMWL claims
Illinois Bell has moved to dismiss Brown's FLSA and IMWL claims to the extent

they seek to recover for conduct beyond the applicable limitations period, which under
the FLSA is two years, or three for willful violations, and under the IMWL is three years.
29 U.S.C. § 255(a); 820 ILCS 105/12(a). Illinois Bell argues that the statute of limitations
bars Brown from asserting claims based on any factual allegations that predate
February 28, 2011, three years before the filing of the Tinoco action. For this reason,
Illinois Bell contends, Brown's claims regarding pre-shift work—which Illinois Bell argues
were never part of Blakes—are time-barred. Illinois Bell also argues that certain

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aspects of Brown's lunch break and post-shift work claims are time-barred to the extent
they predate February 28, 2011 because those aspects of these claims were not
alleged in the Blakes case.
Brown argues that his complaint, in its entirety, relates back to August 31, 2011,
the date he opted into Blakes. Brown contends that Blakes, Tinoco, and the current
case are all part of one continuous action. He argues that even if not all the claims he
asserts in the present case were specifically laid out in Blakes, any added allegations
are substantially similar to the allegations made in Blakes. For this reason, he argues,
all of these claims—actually these parts of his claims—relate back to the date he opted
into the Blakes case.
A number of judges in this district have dealt with these same issues in cases
stemming from Blakes and Tinoco, with varying results. The Court has considered all of
these decisions and finds Judge Amy St. Eve's decision in Ballard v. Illinois Bell
Telephone Co., No. 15 C 2687, 2015 WL 6407574 (N.D. Ill. Oct. 21, 2015), to be the
most persuasive among them. Judge St. Eve concluded that each of the claims made
in separate complaint filed by the plaintiff in Ballard related back to the date the plaintiff
opted into Blakes. Judge St. Eve reasoned that Ballard's suit was not a separate
lawsuit but rather was part of Blakes, and thus the relation-back rule in Federal Rule of
Civil Procedure 15(c) applied. See id. at *3.
This Court agrees with Ballard. In this regard, it is worth noting that Blakes was
not a Rule 23 class action in which Brown was an unnamed party; it was a collective
action that he affirmatively joined. In a collective action under the FLSA—in contrast
with a class action certified under Rule 23—each plaintiff is an actual party to the case

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and asserts claims on his own behalf. In other words, Brown was a party to the Blakes
case as of August 31, 2011.
Judge Kim's decertification of certain claims in Blakes did not adjudicate any of
those claims. Rather, it was simply a determination that they could not be pursued as
part of a collective action. "When a collective action is decertified, it reverts to one or
more individual actions on behalf of the named plaintiffs." Alvarez, 605 F.3d at 450. A
decertification order does not dismiss any plaintiff's claims; rather it determines that they
must proceed as separate claims for each plaintiff rather than collectively. Thus when
Brown, together with other plaintiffs, filed their claims in the Tinoco case, this did not
amount to the filing of a new lawsuit. Rather, it was the continuation of Brown's claims
that he asserted in the Blakes case.
The same is true of Judge Castillo's order in Tinoco finding that the claims of the
plaintiffs in that case (including Brown) were misjoined. Judge Castillo did not dismiss
any plaintiff's claims. Rather, he simply determined they had to proceed separately, and
he assigned each plaintiff his or her own separate docket number. 1
Given these circumstances, there is no basis to say that the present case
constitutes a separate suit from either Tinoco or Blakes. Brown's present suit is a
continuation of Tinoco, just as it (like Tinoco) is a continuation of Blakes. The
administrative detail of whether the case is proceeding under a separate docket number
does not change the fact that Brown has asserted overtime pay claims against Illinois
Bell consistently since the day he joined the Blakes case. For these reasons, the Court

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That likely is how things ought to have been handled when Blakes was decertified,
because that decision, too, only concerned whether the claims were properly joined, not
whether they were properly brought.
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concludes that the relation back doctrine set forth in Federal Rule of Civil Procedure
15(c)(1)(A) applies.
The Court also concludes, as did Judge St. Eve in Ballard, that all of Brown's
claims relate back to the date he joined the Blakes collective action, specifically, August
31, 2011. As an opt-in plaintiff in Blakes, Brown is considered to have filed suit on the
day his opt-in consent form was filed. 29 U.S.C. § 256(b).
The relation back rule does not require that a claim be based on an identical
theory of recovery. Instead, "an amendment relates back to the date of the original
pleading when . . . the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out – or attempted to be set out – in the original
pleading." Fed. R. Civ. P. 15(c)(1)(B). The determination is not formulaic: "[t]he
criterion of relation back is whether the original complaint gave the defendant enough
notice of the nature and scope of the plaintiff's claim that he shouldn't have been
surprised by the amplification of the allegations of the original complaint in the amended
one." Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 573 (7th Cir. 2006).
The Court concludes this standard is met with regard to all of Brown's allegations
that Illinois Bell contends were not made in Blakes. For example, that case put Illinois
Bell on notice of a claim to the effect that Brown (and others) were not paid for time they
had to work over lunch, not just bits and pieces of such a claim. The fact that there
might be different reasons why a cable splitter worked over lunch does not make the
current claim arise from a different transaction or occurrence as the claim originally
made in Blakes. The same is true of post-shift work; the amended complaint in Blakes
squarely alleged that cable splitters were performing post-shift work for which they were

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not properly compensated. The fact that this might have been for different reasons at
different times does not alter the fact that the present claim arises from the same
transaction or occurrence as the earlier claim.
Finally, the same is true of Brown's allegations about uncompensated pre-shift
work, even though there was no specific allegation to that effect in the original
complaint. As the Court has noted, the amended complaint in Blakes specifically
referenced lunchtime and post-shift work, but it also stated that the FLSA was stated for
these and other reasons, and there was a general allegation of failure to properly
compensate cable splitters for all the time they performed work. This is sufficient to
rope in, as part of the same conduct, transaction, or occurrence, Blakes' contention that
he had to perform pre-shift work for which he was not paid.
In sum, Brown has had a continuous action against Illinois Bell under the FLSA
for unpaid overtime from the date he joined Blakes through the present. His claims
against Illinois Bell were never dismissed on their merits. Rather, there was simply a
determination—actually, two determinations—that they could not be pursued as part of
a larger action including other plaintiffs. The Court concludes that Brown's allegations in
this case relate back to the date he opted into Blakes, August 31, 2011. The Court
therefore denies Illinois Bell's motion to dismiss Brown's FLSA claim.
2.

IWPCA claim
Brown also asserts a claim under the IWPCA. This statute allows a worker to

record wages owed under an employment contract or agreement. 820 ILCS 115/2.
Brown alleges that Illinois Bell agreed to pay him overtime for all hours worked in
excess of forty in a given week and that its failure to do so entitles him to relief under

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the IWPCA. Brown's complaint cites two possible contracts or agreements: a collective
bargaining agreement (CBA) between the company and the International Brotherhood
of Electronical workers, and certain written Illinois Bell employment policies.
Illinois Bell argues that Brown's IWPCA claim is preempted by federal law to the
extent it is premised on the CBA. Under section 301 of the Labor Management
Relations Act, 29 U.S.C. § 185, a state law claim is preempted if it depends on the
interpretation of a collective bargaining agreement. Lingle v. Norge Div. of Magic Chef,
486 U.S. 399, 403 (1988). Illinois Bell argues that the factual allegations underlying
Brown's IWPCA claim—that he was not paid the appropriate amount of overtime
wages—depends on an interpretation of the collective bargaining agreement. Brown
acknowledges that his complaint makes reference to the CBA, see 2d Am. Compl. ¶21,
but he contends that his claim does not require an interpretation of its provisions in a
way that would invoke preemption.
The two CBAs at issue, from 2004 and 2009, set out a complex structure of
payment of workers governed by the CBAs' terms. To illustrate, section 18.21 of the
2004 CBA required Illinois Bell to pay an employee a ten dollar meal allowance if he
was required to work three or more additional hours on a regular shift, twelve hours on a
prearranged shift, or eleven consecutive hours including travel time which are paid at
the overtime rate. Section 18.22 required Illinois Bell to pay employees if they were
contacted outside of work. If the employee was required to go into work, Illinois Bell
had to pay him a minimum of two hours overtime pay, unless the call occurred less than
two hours before the start of his next shift. If the off-day or off-hours call was authorized
by management and meant to discuss matters related to the job, Illinois Bell had to pay

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the employee sixty-five dollars. But if the call was prompted by error or omission, no
payment was required. These are but a few examples. As Illinois Bell argues, to the
extent the IWPCA claim is based on the CBA, the Court would have to address how the
various provisions under the CBA apply and exactly what compensation is called for.
The Court agrees with Illinois Bell that because an employee's pay rate depends on the
methodology set forth in the CBA and the application of that methodology requires an
interpretation of the CBA, the IWPCA claim is preempted to the extent it is premised on
the CBA.
Brown also cites certain Illinois Bell policies and argues that those internal
policies save him from LMRA preemption. Am. Compl. ¶¶ 22-23. Specifically, Brown
says that the company's code of business conduct "guarantees that all overtime hours
worked by non-exempt employees will be paid" and that its policy on reporting time
"assures . . . employees that, even if non-exempt employees work overtime without prior
approval, those employees will be paid for that time." Id. ¶ 23.
Illinois Bell argues that these policies are not "contracts or agreements" within
the meaning of the IWPCA. The code of conduct includes a disclaimer stating that it is
not a contract and creates no contractual rights. This is sufficient to preclude it from
serving as a "contract" under the IWPCA, but not necessarily from serving as an
"agreement." See generally Wharton v. Comcast Corp., 912 F. Supp. 2d 655, 659 (N.D.
Ill. 2012); Osorio v. The Tile Shop, LLC, No. 15 C 15, 2015 WL 7688442, at *2 (N.D. Ill.
Nov. 27, 2015) (Kennelly, J.). Under the IWPCA, "[a]n '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

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accompanying legal protections of a contract." Zabinsky v. Gelber Group, Inc., 347 Ill.
App. 3d 243, 249, 807 N.E.2d 666, 671 (2004); see also, Landers-Scelfo v. Corporate
Office Sys., Inc., 356 Ill. App. 3d 1060, 1067, 827 N.E.2d 1051, 1059 (2005). In Osorio,
this Court concluded that an offer letter containing a non-contractual disclaimer
nonetheless amounted to an agreement within the meaning of the IWPCA because both
parties signed the document and manifested an intent to abide by its terms. Here,
however, there is no similar indication of mutual assent, at least none that is alleged in
Brown's complaint. The Court therefore dismisses Brown's IWPCA claim for failure to
state a claim.
Conclusion
For the foregoing reasons, the Court dismisses plaintiff's claim under the IWPCA
but otherwise denies defendant's motion to dismiss [dkt. no. 18].

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: January 19, 2016

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