La v. Dempster Eye Care, P.C. et al
MEMORANDUM Opinion and Order. Defendant's motion for summary judgment 24 is granted. The Court declines to exercise supplemental jurisdiction over the remaining state law claims, and therefore dismisses them without prejudice. Civil case terminated. Signed by the Honorable Jorge L. Alonso on 11/13/2017. Notices mailed by judge's staff (ntf, )
Case: 1:16-cv-03794 Document #: 37 Filed: 11/13/17 Page 1 of 6 PageID #:283
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
SEUNG HUN LA,
Case No. 16 C 3794
Judge Jorge L. Alonso
DEMPSTER EYE CARE, P.C., and SUNAE
MEMORANDUM OPINION AND ORDER
Plaintiff Seung Hun La filed this action against defendants Dempster Eye Care, P.C., and
its president Sunae Ma for unpaid overtime wages under the Fair Labor Standards Act (FLSA)
and the Illinois Minimum Wage Law. [Dkt 1.] La subsequently amended his complaint to add
state law claims of breach of contract and unjust enrichment. [Dkt 31.] Before the Court is
Defendants’ motion for summary judgment on the FLSA claim. [Dkt 24.]
For the following reasons, the Court grants Defendants’ motion. The Court declines to
exercise supplemental jurisdiction over the remaining state law claims and therefore dismisses
them without prejudice.
This lawsuit revolves around La’s claim for unpaid overtime wages during his short-lived
employment with Dempster Eye Care. La worked as an optician for Dempster Eye Care for less
than two weeks, from March 1, 2016 to March 9, 2016. [Dkt 29-1 ¶¶ 5, 6.] He worked 47 hours
during his first week of employment, and 28 hours during his second. (Id. ¶¶ 10, 11.) He does
Case: 1:16-cv-03794 Document #: 37 Filed: 11/13/17 Page 2 of 6 PageID #:284
not seek any overtime compensation for the week in which he worked less than 40 hours. (Id. ¶
La was paid an hourly rate of $15.52 for 68 hours (40 for the first week, 28 for the
second) for a total of $1,055.36, and an hourly rate of $23.28 (which is one and one-half times
$15.52) for seven overtime hours for a total of $162.96. (Id. ¶¶ 15, 16.)
He was also paid $500
for relocation expenses associated with moving to Chicago to accept the job. (Id. ¶18.) La’s
single paycheck and corresponding pay stub from Dempster Eye Care, for $ 1,718.32, reflects
these calculations. (Id. ¶ 13-21.)
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the record, viewed in the light most favorable to
the non-moving party, reveals that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Zaya v. Sood,
836 F.3d 800, 804 (7th Cir. 2016). A genuine issue of material fact exists when “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Zaya, 836 F.3d at
804 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In ruling on a motion for summary judgment, the court must consider the record as a
whole, in the light most favorable to the non-moving party, and draw all reasonable inferences in
favor of the non-moving party. See Anderson, 477 U.S. at 255. The party seeking summary
judgment has the initial burden of showing that there is no genuine dispute and that it is entitled
to judgment as a matter of law. See Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). If the
moving party demonstrates the absence of a disputed issue of material fact, “the burden shifts to
the non-moving party to provide evidence of specific facts creating a genuine dispute.” Id.
“[T]he mere existence of some alleged factual dispute between the parties will not defeat an
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otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.”
Anderson, 477 U.S. at 247-48.
“As to materiality, the
substantive law will identify which facts are material. Only disputes over facts that might affect
the outcome of the suit under the governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.; accord
Carroll, 698 F.3d at 564.
The dispute between the parties is simple. La says Ma promised to pay him $25 per hour,
not $15.52, to work at Dempster Eye Care. According to La, Defendants shortchanged him by
paying him less than $25 per hour, and by paying him overtime based on time and a-half of the
lesser $15.52 hourly rate. Defendants move for summary judgment on the FLSA claim on the
ground that even if the parties disagree as to La’s hourly rate they complied with the FLSA’s
overtime requirements. 1
The FLSA generally requires that covered employees who work more than 40 hours in a
work week be paid at least one and one-half times their regular rate of pay for each overtime
hour worked. See 29 U.S.C. § 207(a)(1). Each week stands alone for purposes of determining
See 29 C.F.R. § 778.104.
In other words, with certain exceptions, the
compensation owed for hours worked is determined on a weekly basis. For an employee who is
“employed solely on the basis of a single hourly rate, the hourly rate is the [employee’s] ‘regular
rate.’” See 29 C.F.R. § 778.110(a). It is well settled that “[w]hile the words ‘regular rate’ are
Defendants also argue that summary judgment should be granted because La did not support
his opposition (and in particular his claimed hourly rate) with evidence other than his own
declaration. The Court need not address this argument since La’s FLSA claim fails as a matter
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not defined in the Act, they obviously mean the hourly rate actually paid for the normal, nonovertime workweek.” Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 40 (1944).
There is no dispute that La was a covered employee under the FLSA or that Dempster
Eye Care was an “employer” as that term is defined in the FLSA. Likewise there is no dispute as
to Defendants’ tabulation of the number of hours La worked, or that La was paid time and a-half
for the seven hours he worked in excess of 40 during the single week at issue. The parties’ only
disagreement is the question of which hourly rate was La’s “regular rate” under 29 C.F.R. §
778.110(a) – $25 per hour according to La, or $15.52 per hour according to Defendants.
Because La says it was $25, he argues Defendants violated the FLSA by not paying him full
overtime calculated from that hourly rate. Time-and a-half of a $25 hourly rate is $37.50, not
$23.28, so according to La, he was shortchanged $14.22 for each overtime hour he worked.
The problem with La’s theory is that the FLSA does not provide a vehicle for addressing
this dispute nor does it define the “regular rate” of pay. Under the FLSA, the regular rate of pay
is an “actual fact.” Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424 (1945).
The only relevant inquiry for an FLSA overtime claim is whether the employer properly
calculated and paid overtime pay in accordance with its time and a-half calculation. The purpose
of FLSA’s overtime requirement is “to compensate those who labored in excess of the statutory
maximum number of hours for the wear and tear of extra work and to spread employment
through inducing employers to shorten hours because of the pressure of extra cost.” Bay Ridge
Operating Co. v. Aaron, 334 U.S. 446, 460 (1948). To this end, overtime hours must be
compensated “at a rate not less than one and one-half times the regular rate at which [the
employee] is employed.” 29 U.S.C. § 207(a)(1).
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Because La does not dispute that he was actually paid the lower hourly rate for the
straight hours he worked, that is his “regular rate” for purposes of calculating his overtime pay
under the FLSA. See Connor v. Celanese, Ltd., 428 F. Supp. 2d 628, 637 (S.D. Tex. 2008)
(granting summary judgment to employer where plaintiffs claimed entitlement to a posted higher
hourly rate but agreed that defendant had actually paid them both the lower hourly rate for
straight time and time-and-a-half of that rate for overtime).
La concedes that Defendants
properly calculated his overtime pay; he only complains that Defendants used the wrong hourly
rate. While La’s claim might give rise to a breach of contract action, and the FLSA might inform
a damages analysis in that context, the FLSA does not provide a remedy for the claim that La
asserts. See Connor, 428 F. Supp. 2d at 637.
To support his theory of an FLSA overtime violation, La relies on a 10th Circuit decision
in which the court stated that to determine an FLSA overtime claim, the court looks to the actual
amount the parties agreed upon for compensation, and a footnote in an unreported 10th Circuit
decision citing the same case. [See dkt 29 at 3 (citing Chavez v. City of Albuquerque, 630 F.3d
1300, 1304-05 (10th Cir. 2011), and Francisco v. Susano, No. 12-1376, 525 Fed. Appx. 828
(10th Cir. 2013)).] Based on this language, he urges that the FLSA requires determination of the
hourly rate to which the parties agreed, not just what La was actually paid. Neither case however
supports his position. In Chavez, the court found that the provisions of a collective bargaining
agreement did not control the definition of regular rate of pay because the regular rate is “an
actual fact” – it is “the hourly rate actually paid for the normal, non-overtime workweek.”
Chavez, 630 F.3d at 1305 (quoting Walling v. Helmerich & Payne, 323 U.S. 37, 40 (1944)). The
court made a similar observation in its footnote discussion in Francisco, a decision about
damages under the Trafficking Victims Protection Act. 525 Fed. Appx. at 830 n. 3 (noting in
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dicta that because the FLSA requires overtime to be paid at a rate not less than one and one-half
times the regular rate, overtime claims look to the actual amount the parties agreed upon for
The parties do not dispute what La was actually paid for the normal non-overtime
workweek. La only says he was promised more. “Even assuming some form of breach of
contract by [defendants], that is not equivalent to a[n] FLSA violation.” Connor, 428 F. Supp.
2d at 637 (emphasis in original) (quoting Hartsell v. Dr. Pepper Bottling Co. of Texas, 207 F.3d
269, 274 (5th Cir. 2000) (rejecting premise that employer and employee’s agreement as to daily
rate pay must be demonstrated to determine FLSA overtime claim and holding, “All that is
required is that employee be, in fact, paid a day rate”)). Because it is undisputed that Defendants
complied with the FLSA’s mandate of time and one-half of the actual hourly rate they paid to La,
summary judgment to Defendants on La’s FLSA overtime claim is proper.
For the reasons discussed above, Defendant’s motion for summary judgment  is
granted. The Court declines to exercise supplemental jurisdiction over the remaining state law
claims, and therefore dismisses them without prejudice. Civil case terminated.
Jorge L. Alonso
United States District Judge
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