Suson v. PNC Bank, National Association

Filing 41

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 10/3/2017: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court grants the defendant's motion for summary judgment [dkt. no. 29] in part a nd denies it in part. PNC is entitled to summary judgment on Suson's IWPCA claim for commissions, but the Court denies PNC's motion with respect to Suson's FLSA / IMWL claim for unpaid overtime. The case is set for a status hearing on 10/16/2017 at 8:45 AM for the purpose of setting a trial date and discussing the possibility of settlement. (mk)

Case: 1:16-cv-05450 Document #: 41 Filed: 10/03/17 Page 1 of 10 PageID #:1213

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JODI L. SUSON,
Plaintiff,
vs.
PNC BANK, NATIONAL ASSOCIATION,
Defendant.

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Case No. 16 C 5450

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Jodi L. Suson, a financial sales consultant, began a new job with PNC Bank in
July 2012. Though Suson hoped that the position would be a step forward in her
financial career, it ultimately put her on a path leading to this Court, as Suson alleges
that PNC failed to pay her the commissions and overtime pay that she says she earned.
Specifically, she alleges violations of the Fair Labor Standards Act (FLSA), the Illinois
Minimum Wage Law (IMWL), and the Illinois Wage Payment and Collection Act
(IWPCA), as well as breach of contract. PNC has moved for summary judgment.
Background
Prior to her employment at PNC, Suson worked at Chase Bank, which she
considered to be "the best bank on the planet[.]" Suson Dep. at 107. 1 She claims she
was drawn away from Chase by the promises made in a job interview at PNC. Two
1

Suson's deposition transcript is joined by a number of other documents in Defendant's
Exhibit 1. Citations to the deposition are cited as 'Suson Dep.' and use the page
numbers of the deposition document. Other citations to the exhibit are cited as 'Def. Ex.
1' and use the ECF page numbers. These citations are followed by a parenthetical
explaining the document being cited.

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PNC interviewers, Suson alleges, promised her several benefits, most notably that she
would earn a commission for all sales of financial products that she referred, even if she
didn't possess the license required by federal regulation to sell those products directly.
Based upon what she perceived to be the agreement formed during her
interview, Suson agreed to join PNC. In her letter of employment, however, was a
provision stating that Suson's sales awards would be administered under the incentive
program standard to all PNC financial employees. Suson did not review the terms of
the program after receiving the letter, but if she had, she would have found that they
were markedly different from her stated expectations. Under the standard program,
Suson was only eligible for awards for products that she possessed a license to sell—
which excluded a number of products that required a Series 7 or Series 65 license,
neither of which Suson possessed.
Compensation relating to Suson's overtime work became another area of
disagreement. Suson alleges she had to work overtime from home because the volume
of her work was impossible to complete during normal hours, the computer that she was
supposed to use lacked tools like Microsoft Office, and the time that PNC promised to
make available for her to study during the workday for her to study to obtain a Series 65
license was constantly interrupted by customer requests. Suson says that her
managers were opposed to her reporting this overtime. Suson has testified that she
was "requested by management not to enter [her] time." Id. at 53. Her manager, John
Acklam, wanted her to "shuffle and bury [her] overtime," as the overtime hours would
increase costs for his branch. Id. at 54. Suson disagreed with the idea that her
manager "wanted [her] to make sure that [she] didn't work over 40 hours"—she asserts

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he just "wanted to make sure it didn't [affect] his cost center." Id. Suson claims that she
worked 15 hours or more of overtime per week.
PNC disputes Suson's claims. It argues that it had no commission agreement
with Suson other than the standard incentive program it uses with all of its financial
specialists. It argues that Suson never reported working overtime hours on her
timesheets while she was employed. It claims that it had no way to know Suson was
working overtime and thus should not be obligated to pay.
Discussion
PNC has moved for summary judgment on Suson's claims. A party is entitled to
summary judgment if it "shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The
nonmoving party "must affirmatively demonstrate, by producing evidence that is more
than merely colorable, that there is a genuine issue for trial" to avoid summary
judgment. Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 705 (7th Cir. 2011).
A genuine dispute of material fact exists if "the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A plaintiff's deposition testimony can be used to show a genuine
dispute of material fact. McKinney v. Office of Sheriff of Whitley Cty., 866 F.3d 803, 814
(7th Cir. 2017).
In its motion, PNC requests summary judgment on Suson's two claims: (1) PNC
violated the IWPCA by failing to pay her commission and (2) PNC violated the FLSA
and IMWL by failing to pay her overtime.

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I.

IWPCA claim
Suson claims that PNC violated the IWPCA by withholding commission

payments it owes under the agreement made at her job interview. 820 ILCS 115/4.
There is a genuine factual dispute concerning the existence of an agreement with PNC
formed during her hiring interview. The IWPCA applies to compensation claims based
upon "agreements," not just contracts. Id. § 2. The term "agreement" is broader than a
contract and requires only the mutual assent of two or more parties. Zabinsky v. Gelber
Grp., Inc., 347 Ill. App. 3d 243, 249, 807 N.E.2d 666, 671 (2004). Suson's deposition
testimony regarding the agreement she says she reached with representatives of PNC
at her hiring interview is sufficient to permit a reasonable jury to find that an agreement
was formed at that time.
The Court agrees with PNC, however, that the undisputed facts demonstrate that
Suson assented to the terms of the standard incentive plan once she began working at
PNC. The standard plan modified whatever broader agreement she entered into at the
time she was hired. In Illinois, an at-will employment contract may be modified by either
side, because "continued performance by both parties serves as acceptance by one
side and consideration by the other side." Schoppert v. CCTC Int'l, Inc., 972 F. Supp.
444, 447 (N.D. Ill. 1997).
When Suson received her letter of employment from PNC, it stated that her
compensation would be calculated using the standard incentive program. The letter
does not mention the agreement Suson claims she established. Def. Ex. 1 at 149
(PNC's letter of employment to Suson). Suson's continued performance constituted her
acceptance of the terms of the letter of employment, and her continued employment

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constituted consideration from PNC. Schoppert, 972 F. Supp. at 447. For this reason,
the standard incentive program controlled her commission payments. Because no
reasonable jury could find that Suson was entitled to any commission payments other
than those specified by the terms of the standard incentive plan, the Court concludes
that there is no genuine dispute for trial. The Court grants PNC summary judgment on
Suson's commission payment claim.
II.

FLSA / IMWL claim
Suson claims that PNC has violated the FLSA, 29 U.S.C. § 207, and IMWL, 820

ILCS 105/4a, by failing to pay for overtime work of which it was aware. PNC offers
three arguments against Suson's claim. First, PNC contends that Suson's claim should
be limited to the five weeks described in her complaint. Second, PNC argues that
Suson has failed to show the existence of a genuine factual dispute regarding PNC's
claimed failure to compensate her for overtime work. Third, PNC argues that Suson's
claim is barred by the two-year statute of limitations for non-willful FLSA violations.
Suson contends that her claim should be considered under the three-year standard for
willful violations of the FLSA. Because the determination of willfulness turns on whether
an overtime violation occurred at all, the Court considers PNC's statute of limitations
argument after PNC's argument for summary judgment.
A.

Scope of claim

PNC argues that Suson's claim should be limited to the five workweeks in June
2013 and March 2014 described in her complaint. The Court declines to do so. There
is no indication that this accounting described the limits of her claim. Under Federal
Rule of Civil Procedure 8(e), "[p]leadings must be construed so as to do justice."

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Though the complaint may be inelegantly drafted, it does not limit Suson's overtime
claim to the specific weeks it references. PNC does not argue that it has been denied
discovery regarding the entirety of Suson's claim as she now describes it, and it does
not explain how it otherwise would be unfairly prejudiced by construing her claim to
cover the full scope of what she claims.
B.

Uncompensated overtime hours

Because courts use the same analysis to decide FLSA and IMWL claims,
Villareal v. El Chile, Inc., 776 F. Supp. 2d 778, 784 (N.D. Ill. 2011), the Court, for ease
of reference, will only discuss the FLSA. The FLSA requires "employers [to] pay for all
work they know about . . . ." Allen v. City of Chicago, 865 F.3d 936, 938 (7th Cir. 2017).
To survive summary judgment, Suson must offer evidence that would permit a
reasonable jury to find that (1) she performed overtime work and (2) PNC actually or
constructively knew of the work. Kellar v. Summit Seating, Inc., 664 F.3d 169, 173, 177
(7th Cir. 2011).
PNC describes Suson's overtime claims as "vague allegations." Def.'s Mem. at
10. But Suson supports her allegations through deposition testimony and several emails, which is sufficient to preclude entry of summary judgment. To cite but one
example, Suson offers an e-mail with an attachment that she prepared, time-stamped at
10:32 p.m. Def. Ex. 1 at 434 (e-mail from Jodi Suson to John Acklam and other
managers). Suson further buttresses her overtime allegation by describing the
inadequacies at her office that forced her to work from home. She alleges her
managers assigned her projects requiring the use of Microsoft Office software, but that
she was unable to use a computer with the software available while at the PNC office.

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Suson Dep. at 58 ("The reason it could only be produced on my [home] computer was
because PNC did not provide any software that is similar or even Microsoft Word,
PowerPoint, Excel, or any software that's like those applications . . . that would allow me
to do my job."). Because of her managers' expressed views about overtime work,
Suson left these hours unreported. Id. at 55. These allegations are sufficient to permit
a reasonable jury to find that she performed overtime work for which she was not paid.
PNC next argues it was unaware that Suson was engaged in overtime work.
FLSA "stops short of requiring the employer to pay for work it did not know about, and
had no reason to know about." Allen, 865 F.3d at 938. PNC argues that Suson's
managers were unaware of the extent of her overtime work, as Suson was not reporting
her overtime hours. Suson Dep. at 52-53.
The evidence Suson presents demonstrates that the issue of whether PNC
knew of her overtime work is a genuine one for trial. Suson testified that her manager,
John Acklam, asked her to "shuffle and bury [her] overtime," in order to keep costs
down at his branch. Id. at 54. Suson specifically denied that her manager was simply
trying to keep her from working overtime hours. Id. Rather, she states that she was
"requested by management not to enter [her] time," and that her manager "did not want
[her] to report it" because "[i]t goes against his cost center" and "he didn't want to go
over budget." Id. at 53, 54, 55. Suson also argues that her managers had to know of
her overtime work, as she was asked to complete projects that required the use of
Microsoft Word and other tools that her office computer lacked. Id. at 58. Finally,
Suson claims that PNC guaranteed her set-aside hours to study at the bank for her
Series 65 exam, but a stream of customers and interruptions forced her to study at

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home. Id. at 176. Given Suson's testimony about her manager's conduct and
directions, as well as the circumstances in which she worked, there is a genuine factual
dispute regarding PNC's knowledge that she was working overtime but not being paid
for it. 2
Because Suson has offered evidence sufficient to permit a reasonable jury to find
that (1) she performed overtime work and (2) PNC actually or constructively knew of the
work, PNC is not entitled to summary judgment on Suson's overtime claim.
C.

Statute of limitations

The statute of limitations under the FLSA is two years, unless the violation is
"willful," in which case there is a three-year period. 29 U.S.C. § 255(a). The statute of
limitations under the IMWL is three years. 820 ILCS 105/12(a). Suson filed this lawsuit
on May 20, 2016. As an initial matter, the Court holds that Suson is time-barred from
any claim for overtime work that accrued more than three years from the date of filing
her complaint, that is, before May 20, 2013. Nehmelman v. Penn. Nat. Gaming, Inc.,
790 F. Supp. 2d 787, 792 (N.D. Ill. 2011) (an FLSA claim accrues with each new
paycheck).
PNC argues that Suson's FLSA claims should be further limited to the two-year
statute of limitations, because she cannot show a genuine dispute of fact regarding a
"willful" violation. A violation of the FLSA is "willful" if "the employer either knew or
showed reckless disregard for the matter of whether its conduct was prohibited by the
2

Suson also cites Bell v. PNC Bank, 800 F.3d 360 (7th Cir. 2015), as further evidence
of PNC's knowledge of her overtime work. But in Bell, a decision affirming class
certification, the Seventh Circuit made no finding that PNC had a policy of unpaid
overtime work. Id. at 379-80 ("If the class prevails in demonstrating that PNC had an
unofficial policy or practice that required employees class-wide to work off-the-clock
overtime hours . . . .") (emphasis added).
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statute." McLaughlin v. Richland Shoe Co., 486 U.S.128, 133 (1988). The plaintiff
bears the burden of demonstrating that a violation is willful. Bankston v. State of Illinois,
60 F.3d 1249, 1253 (7th Cir. 1995). In a motion for summary judgment, the plaintiff
must present sufficient evidence for a reasonable factfinder to conclude that PNC knew
or recklessly disregarded the fact that Suson was working overtime hours and not
receiving compensation. Raimondi v. Central DuPage Hosp., No. 15 C 7780, 2017 WL
1178513, *6 (N.D. Ill. Mar. 30, 2017).
There is a genuine factual dispute regarding whether PNC knew or showed
reckless disregard for whether it violated the FLSA. Suson testified during her
deposition that her managers were keenly aware of their obligations to pay higher
wages for overtime work. Suson Dep. at 54 (Suson describing her manager's concerns
about the impact of overtime on his "cost center"). Moreover, the PNC overtime policy
expressly acknowledges that managers must "make[] certain that nonexempt
employees are paid for all overtime hours worked in compliance with the Federal Fair
Labor Standards Act (FLSA) and similar state laws." Def. Ex. 1 at 158 (PNC overtime
plan). Suson testified that one manager, John Acklam, told her that "[she] was not
allowed to put in that time," as the increased overtime hours would affect the bank's
budget. Suson Dep. at 55. Thus a genuine factual dispute exists regarding whether
PNC willfully violated the FLSA. For that reason, determination of which FLSA statute
of limitations applies is, in this case, a decision for the jury. Bankston, 60 F.3d at 1253.
Conclusion
For the foregoing reasons, the Court grants the defendant's motion for summary
judgment [dkt. no. 29] in part and denies it in part. PNC is entitled to summary

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judgment on Suson's IWPCA claim for commissions, but the Court denies PNC's motion
with respect to Suson's FLSA / IMWL claim for unpaid overtime.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: October 3, 2017

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