Malkowski v. Illinois Bell Telephone Company

Filing 40

MEMORANDUM OPINION Signed by the Honorable Samuel Der-Yeghiayan on 01/15/2016: Granting Defendant's partial motion to dismiss Plaintiff's second amended complaint 16 . Mailed notice (mw,)

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

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Plaintiff,
v.
ILLINOIS BELL TELEPHONE
COMPANY d/b/a AT&T ILLINOIS,
Defendant.

No. 15 C 2749

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Illinois Bell Telephone Company
d/b/a AT&T Illinois’ (Bell) partial motion to dismiss. For the reasons stated below,
the motion is granted.

BACKGROUND
Plaintiff Ronald Malkowski (Malkowski) allegedly worked as a Cable Splicer
for Bell from January 2006 to April 2014. Malkowski alleges in this case that Bell
permitted Malkowski to perform work before his shift, expected him to work during
his meal breaks, and permitted him to work after his shift ended, all without paying
him for the hours worked. Malkowski indicates that he is a class member in Blakes
v. Ill. Bell Tel. Co. (11 C 336), in which he is pursuing certain FLSA claims against
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Bell. In Blakes, the court initially conditionally certified certain claims and later
decertified certain claims. After the decertification, Malkowski joined with certain
plaintiffs from Blakes to pursue the decertified claims in a new action named Tinoco
v. Ill. Bell. Tel. Co. (14 C 1456). On March 24, 2015, the judge in Tinoco granted
Bell’s motion to sever, and as a result, Malkowski was assigned the instant case
number under which he was directed to pursue his claims from Tinoco. (14 C 1456:
DE: 146, 147). Malkowski includes in his second amended complaint in this case
claims alleging violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201
et seq., the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq. (IMWL), and the
Illinois Wage Payment and Collection Act (IWPCA), 820 ILCS 115 et seq. Bell now
moves to dismiss the IMWL and IWPCA claims, and a portion of the FLSA claims.

LEGAL STANDARD
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences
that favor the plaintiff, construe the allegations of the complaint in the light most
favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in
the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th
Cir. 2012); Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750, 753 (7th Cir.
2002). A plaintiff is required to include allegations in the complaint that “plausibly
suggest that the plaintiff has a right to relief, raising that possibility above a
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‘speculative level’” and “if they do not, the plaintiff pleads itself out of court.”
E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir.
2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007));
see also Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that “[t]o survive
a motion to dismiss, the complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face,” and that “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged”)(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009))(internal quotations
omitted).

DISCUSSION

I. FLSA Claims
Bell argues that some of Malkowski’s FLSA claims are time-barred.

A. Consideration of Defense at Pleadings Stage
Malkowski contends that it is improper for the court to address the statute of
limitations issue at the pleadings stage. It is true that “[d]ismissing a complaint as
untimely at the pleading stage is an unusual step, since a complaint need not
anticipate and overcome affirmative defenses, such as the statute of limitations” and
such “defenses typically turn on facts not before the court at that stage in the
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proceedings.” Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., Inc., 782
F.3d 922, 928 (7th Cir. 2015). However, “if a plaintiff alleges facts sufficient to
establish a statute of limitations defense, the district court may dismiss the complaint
on that ground.” Id. (internal quotations omitted)(quoting O’Gorman v. City of
Chicago, 777 F.3d 885, 889 (7th Cir. 2015)).
In this case, Malkowski has presented sufficient allegations to indicate that
certain claims are untimely. As explained below, Malkowski is pursuing claims
relating to conduct from 2006, which is well beyond the limitations period for the
complaint filed in this case in 2015. Even when considering the procedural history
of the claims in this case and tolling of the limitations period, which Malkowski has
alleged in his second amended complaint, it is clear that certain claims are untimely
based upon the pleadings and by taking judicial notice of public court documents.
See Ennenga v. Starns, 677 F.3d 766, 773 (7th Cir. 2012)(stating that “[t]aking
judicial notice of matters of public record need not convert a motion to dismiss into a
motion for summary judgment”). Malkowski chose to place into question the statute
of limitations issue at the outset in his second amended complaint, providing facts
and argument regarding the running of the limitations period. (SA. Compl. Par. 612). Malkowski also presented his position in his opposition to the instant motion as
to equitable tolling in this matter, and has not indicated that any discovery is needed
to present any further equitable tolling arguments. Thus, it is appropriate at this
juncture to address the statute of limitations issue.

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B. Timeliness of Claims
Bell argues that certain FLSA claims in this action are untimely. There is a
two-year statute of limitations for FLSA claims, “except that a cause of action arising
out of a willful violation may be commenced within three years after the cause of
action accrued. . . .” 29 U.S.C. § 255(a). The claims in this action are severed
claims from the claims presented in Tinoco. Malkowski joined in filing the
complaint in Tinoco on February 28, 2014. (14 C 1456: DE 1). The alleged
misconduct in this case reaching as far back as 2006 would fall even outside of the
more liberal three-year limitations period for FLSA claims. Bell does acknowledge
that some of Malkowski’s FLSA claims were tolled when he filed his consent in
Blakes. (Mem. Dis. 6).
Pursuant to 29 U.S.C. § 256, “[i]n determining when an action is commenced
for the purposes of section 255 of this title, an action commenced . . . under the Fair
Labor Standards Act . . . shall be considered to be commenced on the date when the
complaint is filed; except that in the case of a collective or class action instituted
under the Fair Labor Standards Act . . ., it shall be considered to be commenced in
the case of any individual claimant . . . on the date when the complaint is filed, if he
is specifically named as a party plaintiff in the complaint and his written consent to
become a party plaintiff is filed on such date in the court in which the action is
brought. . . . ” Id.; see also 29 U.S.C. § 216(b)(indicating that an employee cannot be
a plaintiff in a FLSA action unless he gives consent in writing and consent is filed).
The record in Blakes indicates that Malkowski signed his consent on August
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18, 2011, and that the consent was filed on August 19, 2011. (11 C 336: DE 95-1:
7). In this district, the courts have generally followed a two-step process for
collective FLSA actions. Jirak v. Abbott Labs., Inc., 566 F. Supp. 2d 845, 847-48
(N.D. Ill. 2008). At the first stage, a plaintiff must obtain a conditional certification,
and at the second stage, the plaintiff must face a more stringent inquiry or else the
claims which were conditionally certified will be decertified. Id.; see also Family
Video Movie Club, Inc., 2015 WL 7293505, at *1-*2 (N.D. Ill. 2015)(stating that
“[a]fter conditional certification has been granted and discovery has clarified the
factual situation, the defendant may move to decertify the action”). During the time
of conditional certification in Blakes, Malkowski was pursuing his FLSA claims, and
thus his limitations period for bringing such claims would have been properly tolled.
See Hodges v. Illinois Bell Tel. Co., 2015 WL 6407757, at *3 (N.D. Ill. 2015)(stating
that “[t]he statute of limitations for a plaintiff in a collective action is tolled after the
plaintiff has filed a consent to opt in to the collective action, and begins to run again
if the court later decertifies the collective action”)(internal quotations
omitted)(quoting Green v. Harbor Freight Tools USA, Inc., 888 F.Supp.2d 1088,
1105 (D. Kan. 2012)). On December 17, 2013, the court in Blakes entered its
memorandum opinion and order granting in part the motion to decertify the class.
(11 C 336: DE 232, 233). The decertified claims at that point became individual
claims brought by each of the named plaintiffs in Blakes. See Alvarez v. City of
Chicago, 605 F.3d 445, 450 (7th Cir. 2010)(holding in a FLSA action that “[w]hen a
collective action is decertified, it reverts to one or more individual actions on behalf
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of the named plaintiffs”). Although the December 17, 2013 order in Blakes did not
specifically dismiss the claims, or sever the claims that were no longer included in
the collective portion of the action, Bell in its memorandum in support of its motion
for decertification sought to dismiss any decertified claims. (11 C 336: DE 205-2:
71), and the court in Blakes indicated in its minute order that it was granting in part
such motion. (11 C 336: DE 232). Bell further indicates that the judge in Blakes
orally indicated that the decertified claims were no longer alive in that case and that
the proper next step would be for the individual plaintiffs to file new actions as to
those claims. (Reply 4). Thus, at that point on December 17, 2013, Malkowski was
no longer pursuing the decertified claims in Blakes, and the limitations period would
have started to run again until he took the initiative to file a new action.
Subsequently, on January 7, 2014, in response to a motion to toll the statute of
limitations, the judge in Blakes held that since the parties were seeking to engage in
settlement negotiations, the December 17, 2013 order would be stayed until February
28, 2014, to give the parties time to decide whether to file individual actions (11 C
336: DE 239). At that point, the limitations period would have again stopped
running until February 28, 2014. On February 28, 2014, Malkowski joined in filing
the complaint in Tinoco and pursued his instant claims. When the judge in Tinoco
severed the claims, on March 24, 2015, the judge gave the individual plaintiffs until
July 30, 2015, to file separate complaints in separate actions, and Malkowski filed
his complaint in this case on July 30, 2015. (14 C 1456: DE 146). Thus, the
limitations period ran until August 19, 2011, when Malkowski filed his consent, and
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for a few days at the end of 2013 and the beginning of 2014. Therefore, Malkowski
can reach back to approximately August 2008 for willful claims, and August 2009
for non-willful claims.

C. Scope of Claims Raised in Blakes
Bell argues that, even though the limitations period may have been tolled for
certain FLSA claims, only the specific FLSA claims that were pursued in Blakes
would have been tolled. Malkowski has presented no controlling precedent that
indicates that a plaintiff can later raise a new claim and retroactively have the
limitations for that claim tolled. The tolling in this instance is an exceptional
circumstance that is accorded to a plaintiff because the plaintiff is actively pursuing
the claim in a collective action and the defendant has notice of the claim. The
plaintiff properly should not be prejudiced if the court determines that the claim
cannot go forward in the collective action and requires the plaintiff to proceed in a
separate individual action.
Malkowski argues that he put Bell “on notice of claims by Cable Splicers for
unpaid overtime wages.” (Resp. 9). However, the mere fact that Malkowski alleged
that Bell violated the overtime provisions of FLSA does not mean that Malkowski
provided Bell with notice of the new claims he has brought in this case. The fact that
certain FLSA claims may have been raised in Blakes, did not give Malkowski carte
blanche authorization to raise any FLSA claim he can come up with years later. In
order to give Bell notice of a claim, Malkowski needed to do more than simply
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inform Bell that it had violated the overtime provisions of the FLSA. A plaintiff
cannot, for example, state a valid employment discrimination claim by simply
alleging that an employer discriminated against him, or a Section 1983 claim by
simply alleging a public actor violated his constitutional rights, without some
additional supporting facts to explain what actions by the defendant are at issue. Bell
was not put on notice of all FLSA claims merely by its reference, and Bell could not
be expected to speculate as to all possible manners in which Malkowski may have
believed that Bell violated the FLSA. The burden on Bell in Blakes was a modest
one to provide at least a general set of facts to identify each FLSA claim, and
Malkowski cannot now seek to amend his claims brought years ago in Blakes.
The court also notes that even if the instant action could be construed as a
continuation of the same case in Blakes and Malkowski seeks to have his complaint
in this case relate back to the complaint in Blakes pursuant to Federal Rule of Civil
Procedure 15(c)(1), it would only apply to the same FLSA claims asserted in Blakes,
not to the additional conduct that has been introduced in this case which Bell
received no notice of in Blakes. See Fed. R. Civ. P. 15(c)(1)(limiting relation back of
amendments to conduct that arose out of the “conduct, transaction, or occurrence”
alleged in the prior pleading); see also Staren v. Am. Nat. Bank & Trust Co. of
Chicago, 529 F.2d 1257, 1263 (7th Cir. 1976)(stating that “notice is the critical
element involved in Rule 15(c) determinations”). While Malkowski was not
required to plead every specific fact in support of his FLSA claims in Blakes,
Malkowski did plead specific FLSA claims and the court in Blakes in fact held that
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Malkowski had pled only certain specific FLSA claims, that Malkowski had waived
“any arguments regarding whether [Malkowski] pled pre-shift work or post-shift
work not tied to timesheet completion.” (11 C 336: DE 355: 20). The court in Blakes
also made clear that the claims in Blakes did encompass “any possible FLSA claim
under the sun.” (11 C 336: DE 56: 16).
In Blakes, the plaintiffs sought certification for employees who were allegedly
forced to work during lunch breaks when they traveled from site to site and did work
to maintain a safe work site. (11 C 336: DE 56:2). Additionally, in Blakes, the
plaintiffs sought certification for those who, after their shift, were unable to complete
their time sheets and clock-out in time because of the lack of computers in the
garages. (11 C 336: DE 56:2). The court in Blakes granted the motion to decertify
the class in regard to the lunch break claims, and denied the motion as to the postshift claims. (11 C 336: DE 233: 60). Thus, in the instant action, for the FLSA
claims other than the decertified claims, the limitations period for such claims was
not tolled.

D. Equitable Tolling
Malkowski argues that his claims should not be found untimely based on the
equitable tolling doctrines. See Cada v. Baxter Healthcare Corp., 920 F.2d 446,
450-51 (7th Cir. 1990)(explaining the equitable tolling doctrines). Malkowski
contends that Bell will not be prejudiced by allowing Malkowski to introduce the
new claims in this case and that discovery will not be significantly increased. (Resp.
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6 n.2, 7-10). However, the standard for employing the equitable tolling doctrines is
not simply a showing that the defendant will not be prejudiced or that discovery will
not be delayed. While prejudice to the defendant may be considered, the equitable
tolling doctrines are only employed in extraordinary circumstances when the plaintiff
can show that he was prevented from bringing the claim or was unable to bring the
claim in a timely fashion. See Sidney Hillman Health Ctr. of Rochester v. Abbott
Labs., Inc., 782 F.3d 922, 930-31 (7th Cir. 2015)(stating that “[e]quitable tolling is
granted sparingly only when extraordinary circumstances far beyond the litigant’s
control prevented timely filing”)(internal quotations omitted)(quoting Wilson v.
Battles, 302 F.3d 745, 749 (7th Cir. 2002)); Socha v. Boughton, 763 F.3d 674, 684
(7th Cir. 2014)(stating that equitable “tolling is rare; it is reserved for extraordinary
circumstances far beyond the litigant’s control that prevented timely filing”)(internal
quotations omitted)(quoting Nolan v. United States, 358 F.3d 480, 484 (7th Cir.
2004)); Savory v. Lyons, 469 F.3d 667, 673-74 (7th Cir. 2006)(stating that “[o]nce
extraordinary circumstances weighing in favor of equitable tolling are identified,
they must be balanced against any prejudice that the delay might cause the
defendants”); Cada, 920 F.2d at 450-51 (explaining the equitable tolling doctrines).
In this case, the equitable tolling doctrines are not applicable. Malkowski is
not claiming that he was somehow prevented by Bell from bringing his new claims
earlier or that he was unable to do so for some reason. Malkowski does argue that
there was confusion regarding the scope of the Blakes action, to justify a tolling of
the limitations period. (Resp. 8, n.3). However, the record does not reflect any such
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confusion. Malkowski was the master of his own complaint in Blakes and he chose
not to include in that complaint the new claims that he now seeks to bring in the
instant action. The equities in this case favor preventing Malkowski from expanding
his FLSA claims years after the limitations period have run. Malkowski has thus
failed to show that equitable tolling is appropriate in this instance. Therefore, Bell’s
motion to dismiss the FLSA claims other than the decertified lunch break claims is
granted.

II. IMWL Claims
Bell moves to dismiss the IMWL claims contending that they are time-barred.
The statute of limitations for an IMWL claim is three years. 820 ILCS 105/12;
Ballard v. Illinois Bell Tel. Co., 2015 WL 6407574, at *3 (N.D. Ill. 2015). The
record reflects that Malkowski first presented IMWL claims in Blakes on January 17,
2011, and that such claims were voluntarily dismissed on June 23, 2011. (11 C 336:
DE1, DE60). Even if the limitations period was tolled for approximately six months
while the IMWL claims were pending in Blakes, by the time Bell had brought his
IMWL claims in Tinoco on February 28, 2014, the limitations period had run. In
addition, as explained above in regard to the FLSA claims, there is no justification
for tolling the limitations period. Thus, the IMWL claims are time-barred and the
motion to dismiss such claims is granted.

III. IWPCA Claims
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Bell moves to dismiss the IWPCA claims. For an IWPCA claim, a plaintiff
must allege that he is “owed compensation from” the defendant “pursuant to an
employment agreement.” Enger v. Chicago Carriage Cab Corp., 2016 WL 106878,
at *2 (7th Cir. 2016). Malkowski argues that his allegations relating to Bell’s
internal policies can serve as a basis for his IWPCA claims. Courts in this district
have rejected this argument. See, e.g., House v. Illinois Bell Tel. Co., 2015 WL
7731866, at *5 (N.D. Ill. 2015). Malkowski relies upon the Reporting Time Worked
policy, but that policy merely indicates that Bell has a policy of properly
compensating employees for overtime in accordance with FLSA and other applicable
law. (DE 16-1: 126). Malkowski also points to Bell’s Code of Business Conduct,
but that code specifically provides that it is “not a contract of employment and does
not create contractual rights of any kind. . . .” (DE 16-1:123). Finally, Malkowski
argues that he can rely on the Collective Bargaining Agreement (CBA). However,
the Seventh Circuit has held that “[e]ven where a plaintiff relies on state law in a
complaint and makes no mention of” the Labor Management Relations Act (LMRA),
29 U.S.C. § 185, “the federal statute will displace the state-law claim to ensure
uniform interpretation of collective bargaining agreements”). The LMRA does not
preempt every state claim indirectly relating to a CBA, there is preemption when a
state claim “indirectly implicate[s] a” CBA and when a direct interpretation of the
CBA is required. Healy v. Metro. Pier & Exposition Auth., 804 F.3d 836, 841 (7th
Cir. 2015)(stating that Ҥ 301 preempts a state law tort claim if resolution of the
claim requires the interpretation of a collective-bargaining agreement”)(internal
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quotations omitted)(quoting Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399,
413 (1988)); see also Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211
(1985)(stating that “not every dispute concerning employment, or tangentially
involving a provision of a collective-bargaining agreement, is pre-empted by § 301
or other provisions of the federal labor law” and that “Section 301 on its face says
nothing about the substance of what private parties may agree to in a labor
contract”).
Malkowski contends that he simply seeks to reference the CBA to show the
existence of an actionable agreement rather than to interpret the CBA. However,
understanding the terms of the agreement that supports the IWPCA will necessarily
involve an interpretation of the CBA. Thus, such claims would be preempted by the
LMRA. Therefore, Bell’s motion to dismiss the IWPCA claims is granted.

CONCLUSION
Based on the foregoing analysis, Bell’s motion to dismiss certain FLSA claims
is granted, and Bell’s motion to dismiss the IMWL claims, and IWPCA claims is
granted.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: January 15, 2016

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