Walsh v. CME Group Inc. et al
MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 10/6/2017: Defendants' motion for summary judgment 37 is granted. Plaintiff's motion for summary judgment 42 is denied. Enter judgment in favor of defendants and terminate civil case. [For further detail see attached order.] Notices mailed. (psm, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
MICHAEL WALSH, individually and on
behalf of all others similarly situated,
No. 16 CV 6224
Judge Manish S. Shah
CHICAGO MERCANTILE EXCHANGE INC.,
and CME GROUP, INC.,
MEMORANDUM OPINION AND ORDER
Michael Walsh, a former at-will employee of Chicago Mercantile Exchange,
alleges that CME failed to provide him with shift differential payments for working
qualifying shifts, such as nights and weekends. Walsh argues that CME’s companywide shift differential policy guaranteed him increased pay and that his supervisor
assured him he would receive such payments. Walsh brings suit to recover these
payments under the Fair Labor Standards Act, the Illinois Wage Payment and
Compensation Act, and the Illinois Minimum Wage Act. Both Walsh and CME move
for summary judgment.
Summary judgment is appropriate if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgement as
a matter of law. Fed. R. Civ. P. 56(a); Spurling v. C & M Fine Pack, Inc., 739 F.3d
1055, 1060 (7th Cir. 2014). A genuine dispute as to any 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). The party seeking
summary judgment has the burden of establishing that there is no genuine dispute
as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
“Cross-motions must be evaluated together, and the court may not grant summary
judgment for either side unless the admissible evidence as a whole—from both
motions—establishes that no material facts are in dispute.” Bloodworth v. Village of
Greendale, 475 Fed. App’x 92, 95 (7th Cir. 2012).
Defendant CME operated as a wholly owned subsidiary of defendant CME
Group.  ¶ 2.1 Defendants operated a derivatives exchange on which futures
contracts, and options on futures contracts in various asset classes, were traded via
an electronic trading platform and a physical trading floor.  ¶ 1. CME employed
Walsh as an at-will employee from January 2011 through March 2016  ¶ 1; 
Motion to Strike
Plaintiff filed a motion to strike defendants’ Exhibits 3, 5, and 7 in support of
their motion for summary judgment. The three exhibits at issue are declarations
taken from Robert Petrowski, Jason Tolsky, and Elizabeth Francis, all dated
Bracketed numbers refer to entries on the district court docket. Referenced page numbers
are taken from the CM/ECF header placed at the top of filings, except in the case of
citations to depositions, which use the deposition transcript’s original page number. The
facts are largely taken from defendants’ response to plaintiff’s LR 56.1 statement of fact
, plaintiff’s response to defendants’ LR 56.1 statement of fact , and defendants’
response to plaintiff’s statement of additional facts , where the asserted fact and
accompanying response are set forth in the same document.
between May 10 and 12, 2017. Plaintiff moves to strike these declarations pursuant
to Rule 37(c), arguing that they were obtained after the close of discovery. However,
nothing in the Federal Rules prohibits this practice. See Black & Decker Corp. v.
Positec U.S.A. Inc., No. 11 C 5426, 2015 WL 1543262, at *12–13 (N.D. Ill. March 31,
2015). Rule 37(c) provides, in part, that “[i]f a party fails to provide information or
identify a witness as required by Rule 26(a) or (e), the party is not allowed to use
that information or to supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). Rule
26(a) requires disclosure of “the name and, if known, the address and telephone
number of each individual likely to have discoverable information” and “a copy—or
description by category and location—of all documents, electronically stored
information, and tangible things that the disclosing party has in its possession,
custody, or control and may use to support its claims or defenses, unless the use
would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A). Under Rule 26(e):
A party who has made a disclosure under Rule 26(a)—or who has responded
to an interrogatory, request for production, or request for admission—must
supplement or correct its disclosure or response: (A) in a timely manner if the
party learns that in some material respect the disclosure or response is
incomplete or incorrect, and if the additional or corrective information has
not otherwise been made known to the other parties during the discovery
process or in writing; or (B) as ordered by the court.
“The obligation to supplement responses to formal discovery requests applies to
interrogatories, requests for production, and requests for admissions, but not
ordinarily to deposition testimony.” Fed. R. Civ. P. 26 Advisory Committee Note.
Defendants disclosed Petrowski, Tolsky, and Francis as potential witnesses
in their Rule 26(a) initial disclosures, and plaintiff has failed to point out any
inconsistencies between these declarations and other portions of the record. The
rules do not prohibit taking a declaration by a disclosed witness after the close of
discovery. The motion to strike is denied.
Relevant time period
Defendants argue that plaintiff has waived any claims for shift differential
payments arising prior to June 16, 2013.  at 9. Defendants base this argument
on statements plaintiff’s counsel made during a deposition of Walsh, and plaintiff’s
failure to object to, or clarify, those statements in subsequent proceedings. Id. At
issue is counsel’s response to a question about the basis for plaintiff’s claims for
shift differential pay from January 2011 to April 2012. Plaintiff’s counsel
I’m going to object on relevance grounds. Counsel, as you’re—as you’re well
aware, the statute of limitations only goes back, if we assume willful, only
three years, and I think that renders anything—as far as his claims going
back to 2011, obviously, are not an issue. Id.
When defendants’ counsel pointed out that plaintiff was, in fact, claiming damages
back to 2011, plaintiff’s counsel said, “[n]o, we’re not. By law, we can’t do that.” Id.
In plaintiff’s response to defendants’ motion for summary judgment, plaintiff
attempted to clarify that his counsel had been referring only to the statute of
limitations under the FLSA, and not the IWPCA, which has a longer statute of
limitations. See 735 ILCS 5/13-205, 5/13-206. Though this is far from clear from
counsel’s statements at Walsh’s deposition, it appears that counsel made a mistake
of law as to the applicable statute of limitations, not a deliberate waiver of his
client’s claims. For this reason, I will consider plaintiff’s IWPCA claims arising prior
to June 2013.
CME and DCCI
CME’s data centers house the servers for the CME Globex electronic trading
platform  ¶ 7. A data center is comprised of server cabinets, heavy air
conditioning, and reliable electric power.  ¶ 12. In June 2008, CME created the
Data Center and Critical Infrastructure Department (“DCCI”), responsible for,
among other things, the daily operation of CME’s data centers and critical
infrastructure sites, including their electrical, mechanical, and HVAC systems. 
¶ 23;  ¶ 6. Initially, CME had one remote data center in Lombard, Illinois, and
then added a second, called the Annex or ADC, in Chicago.  ¶ 9. They began
construction of a third—known as DC3—in Aurora, Illinois in 2008, completing the
first phase of construction in 2010.  ¶ 10. CME finished the next phase of
construction a year or two later, and people began moving in to the new suites in
February 2013. Id. Around July 2011, the DCCI at the DC3 location started
operating on a 24/7/365 basis. Id. ¶ 21. In November 2011, a separate CME
department at DC3—Data Center Engineers—switched to 12-hour shifts to
accommodate the need for 24-hour coverage. [52-26] at 65:6–10.
Robert Petrowski was the managing director of DCCI. Id. ¶ 17;  ¶ 8.
When DCCI was formed in 2008, Petrowski had approximately eight employees
working under him.  ¶ 24. Wayne Bearden and Michael Briskey both reported
directly to Petrowski. [52-28] at 13:1–5; [52-29] at 28:13–22. Bearden was
responsible for making employee schedules and assigning shifts and locations. 
¶ 30. Petrowski would look at the schedules before Bearden emailed them to the
employees to check whether the proposed schedule would create certain conflicts for
the employee—such as missing a class. Id. Briskey took over at least some of
Bearden’s responsibilities in 2014.  ¶ 76. Petrowski, Bearden, and Brisky
emphasized to DCCI employees the requirement that the data center operate
consistently, 24 hours a day, seven days a week, 365 days a year.  ¶ 29.
Petrowski told employees, and Bearden and Brisky repeated: “We can never go
down. If our data centers for CME Group w[ere] down one hour, it would affect the
U.S. economy. If it was down for two hours, it would affect the world economy.” Id.;
 ¶ 94. DCCI employees had to share on-call duties and monitor and respond to
relevant alarms. [41-4] at 1.
CME’s written shift differential policy
In April 2012, CME published a written policy on shift differential
compensation.  ¶ 39. The policy replaced and superseded CME’s previously
unwritten shift differential practice and remained unchanged through March 31,
2016. Id.;  ¶ 80. The 2012 policy set forth the eligibility criteria to qualify for
shift differential pay, as well as the procedure and necessary approvals.  ¶ 41.
The policy stated:
All U.S. and international employees of the following CME Group Inc.
companies . . . may be eligible to receive shift differential pay: Chicago
Mercantile Exchange Inc., CME Group Clearing Europe, [etc.]. . . . Employees
at or above the Executive Director level, Security Officers, and employees
covered by a collective bargaining agreement are not eligible for shift
Only those departments with jobs requiring continual coverage, as approved
by management, during qualifying shifts may institute shift differential pay
for their employees. Employees may be assigned to a qualifying shift and
receive shift differential pay on a temporary or permanent basis. Employees
may also work a qualifying shift, but not receive shift differential pay if the
schedule is not required by business needs. [52-1] at 1.
The purpose of the policy was “to provide additional compensation for employees
who are required to work a second, third or non-standard shift due to a defined
business need.” Id.
The policy defined “shift differential” as “a premium applied to an employee’s
base salary (exempt employees) or base hourly rate (non-exempt employees) to
compensate them for working a qualifying shift to which they have been assigned.
CME Group provides a flat 10% of base salary or base hourly rate as the shift
differential pay to employees working a qualifying shift. For non-exempt employees,
the adjusted base hourly rate will be used to calculate overtime pay and pay for
benefit time taken.” Id.
Second, third, and non-standard shifts qualified for shift differential. The
qualifying shifts were defined as follows: second shift was a shift where the
standard work day began between 12:00 PM and 7:59 PM; third shift was where the
standard work day began between 8:00 PM and 3:59 AM; and non-standard shifts
were shifts where the standard workweek was Tuesday through Saturday, or
Sunday through Thursday. Id.
The policy also outlined the proper procedure for instituting shift differential
pay to a qualifying employee, id. at 2:
In order for an employee to qualify for shift differential pay, there must be a
defined departmental business need to have the employee working the
assigned shift. Employees working qualifying shifts as a result of the Flexible
Work Arrangement Policy will not be eligible to receive shift differential pay.
Likewise, employees choosing to work non-standard shifts for personal
reasons will not qualify for shift differential pay.
To provide an employee with shift differential pay, managers must complete
the PeopleSoft Employee Record Change (PERC) form and submit it to HR.
The manager should include the employee’s work hours on the form. Keep in
mind that it is the manager’s responsibility to ensure there is a defined
business need for having the employee assigned to a qualifying shift. The
PERC form providing an employee with shift differential pay requires MD
It is the manager’s responsibility to complete the PeopleSoft Employee
Record Change (PERC) form and submit it to HR when an employee’s
schedule changes to a non-qualifying shift. At that time, the employee will no
longer receive shift differential pay.
On the last line, the policy provided a contact number, which was the general HR
phone number. Id.
The hiring process and plaintiff
Petrowski and Bearden participated in the interviewing and hiring process
for DCCI employees.  ¶ 12. At the beginning of the hiring process Petrowski
worked with Bearden and Human Resources to set a starting hourly rate. [40-3]
¶ 11. In doing so, Petrowski considered a number of factors including: the salary
range for similar positions in the market, the rotating nature of the time and
location of shifts, the need to work overtime and weekends, and the type of work the
employees would perform. Id. ¶ 12. Throughout the process Petrowski told
candidates and new hires that it was a hard job and they would “work a lot of
overtime and work nights, midnights, or afternoons.”  ¶ 47. At no point during
the hiring process, or immediately after, did anyone mention shift differential pay.
Id.;  ¶¶ 14, 19.
Walsh applied for a Supervisor Building Operations position with DCCI in or
around December 2010.  ¶ 15. On December 16, 2010, CME extended an
employment offer to him, with a starting hourly pay of $34.  ¶¶ 18, 20. The joboffer letter did not reference a shift differential, and the concept of a shift
differential was not mentioned to Walsh prior to his start of employment. 
¶¶ 18, 21–22. Walsh accepted CME’s offer and began working for CME on January
10, 2011.  ¶ 23. Throughout his time at CME, Walsh was an at-will employee.
 ¶ 24.
In the first week of his employment, Walsh opened his human resources
profile on the computer and saw a notation stating that he was “second shift 10
percent shift differential.” [41-22] at 59:1–11;  ¶ 30. When he showed one of his
DCCI coworkers the notation, the coworker indicated that he was not receiving shift
differential. Id. The next day, Walsh approached Petrowski to tell him that his
coworker had seen the shift differential notation on Walsh’s profile.  ¶ 31. Walsh
told Petrowski, “I’m sorry that I let [the coworker] see that.” Petrowski said in
response, “[D]on’t worry about what you did, Mike, that’s fine. There is a shift
differential. There is a shift differential.” Id. Walsh replied, “[O]kay, sorry about
that,” and the conversation ended. Id. Petrowski did not say anything else to Walsh
about a shift differential during this conversation or at any other time during
Walsh’s employment with CME. Id. Walsh received a ten percent shift differential
in his first paycheck. [40-2] at 3. That ten percent, however, was recouped from his
second paycheck.2 Id. at 4. Aside from his first paycheck, Walsh never received shift
differential payment from CME.  ¶ 35.
Walsh “happened to see” CME’s written 2012 Shift Differential Policy for the
first time when he was looking at the Human Resources policies on the intranet
sometime in late 2013.  ¶ 54. After Walsh saw the written policy for the first
time, he thought he should receive a shift differential, though he did not expect to
receive one. [40-1] at 90:6–20. He also came across an article or blog post written by
the Associate Director at CME Group’s Globex Control Center in Chicago, stating
that he received a ten percent shift differential.  ¶¶ 36–37.
In July 2012, Jason Tolsky, CME Group’s Director of Compensation, emailed
Bearden and Briskey asking if any of the DCCI employees were working qualifying
shifts because records showed that none of the DCCI employees were receiving shift
differential pay. [41-12] at 1. In response, Bearden asked Tolsky to “call [his] cell.”
Id.3 In 2014, Walsh called Elizabeth Francis, Senior Director of Employee relations,
to discuss the shift differential.  ¶ 57. In April of 2014, Francis emailed Tolsky
As Walsh points out, the shift differential Walsh received for the 1.5 overtime hours from
his first paycheck was not recouped in his second paycheck. See [40-2] at 3–4.
Briskey testified that he did not know who Tolsky was, nor did he remember receiving the
email. He stated, however, that when he and Bearden both received an email he deferred to
Bearden as the more senior member of management, and so once he saw Bearden’s
response to Tolsky he knew Bearden had addressed the issue. [41-29] at 144:6–145:3; 
to ask whether Walsh should be receiving shift differential payments. [41-14] at 5.
In response, Tolsky stated—in reference to DCCI—“I believe they just bake [shift
differential] into their initial salary offer or something, as most of the team works
off-hours. . . . I may be getting that wrong, but I thought there was some rationale
that exists.”4 Id. at 4. Francis then noted that she would inform Walsh that he
received shift differential on his first paycheck by mistake and that building
operations and security personnel were not paid shift differential per CME policy.
Id. at 2. Tolsky then suggested that Francis tweak her response to Walsh to show
that this was not per CME policy, but rather a decision made by division
management, and Francis thanked him. Id. at 1.
In March 2016, CME negotiated the sale of DC3 to CyrusOne.  ¶ 61. As
part of the transaction, CME agreed to terminate the employment of DCCI
employees working at DC3, and those individuals would become employed by
CyrusOne. Id. Francis had two meetings with the DCCI employees about the
transition to CyrusOne. Id. ¶ 62. At the meetings, DCCI employees asked Francis
about why they were not receiving shift differential payments. [52-22] at 105:19–
107:22; [52-24] at 77:12–78:21; [52-25] at 162:16–168:14. Afterward, each employee
contacted Francis directly about his individual situation.  ¶ 64. Francis told the
DCCI employees that she would look into the issue and get back to them. Id. ¶ 65.
Walsh disputes the fact that shift differential was baked in to the DCCI employees’ pay.
He argues that because Petrowski never instructed Bearden to inform candidates that shift
differential was baked in to their pay, Petrowski must not have taken it into account when
setting the pay rate. However, what Petrowski did or did not consider in setting the
employee pay rates has no impact on Walsh’s claims, which turn on whether CME has
agreed to make shift differential pay part of his regular rate of pay.
That same day, Francis emailed Petrowski about the issue, asking him not to
discuss the shift differential with the DCCI employees until she received the goahead from the legal department.  ¶ 71; [52-15] at 1. Later, Francis told the
DCCI employees, including Walsh, they were not eligible to receive shift differential
pay under the policy based on a decision made by DCCI management.  ¶ 69.
Plaintiff’s employment with CME ended on March 31, 2016, and plaintiff
then became an employee of CyrusOne.  ¶¶ 72–73. Plaintiff filed his lawsuit
against defendants on June 15, 2016.  ¶ 74.
Walsh alleges that CME agreed to provide him shift differential payments,
both through CME’s 2012 written policy, and through Petrowski’s statement to him
that “[t]here is a shift differential.” Defendants’ failure to provide him with these
payments, plaintiff argues, violates the Fair Labor Standards Act, 29 U.S.C. § 201,
et seq., the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq., and the Illinois
Wage Payment and Collection Act, 820 ILCS 115/1, et seq. Because none of these
statutes requires employers to institute shift differential, and they merely ensure
that employers honor the promises they make to their employees, plaintiff’s claims
turn on whether CME agreed to pay him shift differential.
The IWPCA requires employers to timely pay earned wages to their
employees. 820 ILCS 115/3–5. The IWPCA does not independently entitle
employees to shift differential payments, rather the purpose is to ensure that
employers honor the wage and payment terms of existing employment agreements.
820 ILCS 115/3; see also Cohan v. Medline Indus., Inc., 170 F. Supp. 3d 1162, 1175
(N.D. Ill. 2016), aff’d 843 F.3d 660 (7th Cir. 2016) (noting that the IWPCA “does not
. . . confer rights to compensation that are absent from the employee’s contract or
employment agreement”). An “agreement” under the Act is “broader than a
contract,” and “requires only a manifestation of mutual assent on the part of two or
more persons.” Hess v. Kanoski & Assoc., 668 F.3d 446, 452 (7th Cir. 2012).
However, without an agreement, an employee can have no claim under the IWPCA.
Brown v. Lululemon Athletica, Inc., No. 10 C 05672, 2011 WL 741254, at *3 (N.D.
Ill. Feb. 24, 2011); see also Stark v. PPM Am., Inc., 354 F.3d 666, 672 (7th Cir.
Similarly, neither the FLSA, nor the IMWL, independently confers a right to
shift differential payments for nonstandard shifts. Both statutes require employers
to compensate non-exempt employees at a rate of one and one-half times their
“regular rate” of pay for hours worked in excess of forty hours in one week. 29
U.S.C. § 207(a); 820 ILCS 105/4a(1). The FLSA defines “regular rate” of pay to
include “all remuneration for employment paid to, or on behalf of, the employee.” 29
U.S.C. § 207(e). The definition excludes overtime premiums. 29 U.S.C. § 207(e)(5)–
(7). But non-overtime premiums, such as shift differentials, are included in the
regular rate of pay. 29 C.F.R. § 778.207. As a result, whether defendants must
include shift differential in calculating plaintiff’s regular rate of pay under the
FLSA and IMWL also depends on whether CME ever agreed to pay Walsh shift
Walsh claims that CME owes him shift differential pursuant to the 2012
CME Group company-wide written policy. Additionally, Walsh argues that
Petrowski’s statement to him that “[t]here is a shift differential” created a contract,
binding CME to pay him shift differential from that point forward. CME argues
that the 2012 policy affords department directors the discretion to decide whether
they will provide shift differential for their employees and does not entitle every
employee who works a qualifying shift to shift differential payments. CME also
argues that, while Petrowski’s statement shows acknowledgement that shift
differential exists, it does not constitute a promise to plaintiff or an agreement that
he would receive a shift differential. Finally, CME argues that even assuming the
policy or Petrowski’s statements gave rise to a binding agreement to pay plaintiff
shift differential, that agreement was modified when plaintiff realized that CME
would not, in reality, pay him shift differential and he continued to work for, and
accept payment from, CME.
CME’s 2012 written policy
Illinois courts have held “that an employee handbook or other policy
statement creates enforceable contractual rights if the traditional requirements for
contract formation are present.” Duldulao v. Saint Mary of Nazareth Hosp. Ctr., 115
Ill.2d 483, 490 (1987). First, the language of the policy must contain a promise clear
enough that an employee would reasonably believe that an offer has been made. Id.
Second, the statement must be disseminated to the employee in such a manner that
the employee is aware of its contents and reasonably believes it to be an offer. Id.
Third, the employee must accept the offer by commencing or continuing to work
after learning of the policy statement. Id. When these conditions are met, then the
employee’s continued work constitutes consideration for the promises contained in
the statement, and a valid contract is formed. Id.
At issue here is the first Duldulao requirement: whether CME’s 2012 policy
contains a promise clear enough that an employee would reasonably believe that an
offer has been made. “[A]n employee handbook or similar document creates
enforceable contractual rights only when specific procedures have been prescribed
by positive and mandatory language.” Doe v. First Nat’l Bank of Chicago, 865 F.2d
864, 872 (7th Cir. 1989) (finding that a memorandum stating that employees may
be disciplined, but not promising that specific procedures would be used, was not a
promise clear enough that an employee would reasonably believe it constituted a
contract), see also Duldulao, 115 Ill.2d at 491 (relying on the mandatory nature of
the terms “cannot occur” and “are never dismissed” to find that an employee would
reasonably believe those terms were part of her contract). A policy that something
“may” result is clearly discretionary, and not mandatory. See St. Peters v. Shell Oil
Co., 77 F.3d 184, 187 (7th Cir. 1996). Discretionary language does not create an
enforceable contract under Duldulao. Id.
In relevant part, the 2012 policy states, CME employees “may be eligible to
receive shift differential pay” and “[o]nly those departments with jobs requiring
continual coverage, as approved by management, during qualifying shifts may
institute shift differential pay for their employees.” [52-1] at 1. Nowhere does the
policy state that CME “must pay,” or that employees “shall receive,” shift
differential. Instead, the policy uses permissive language, indicating that such
payment is discretionary. Walsh argues, relying on cases involving statutory
interpretation, that the presence of the term “may” does not necessarily mean a
statement is discretionary. This may be true in some instances, but in the context of
this policy, when read as a whole, it is clear that CME used permissive terms to
indicate that CME directors had discretion to decide whether to institute shift
differential payments. Walsh also points out that the policy does not use the word
“discretionary” outright. But there are other ways, including using permissive as
opposed to mandatory language, to indicate the discretionary nature of a decision.
In addition, the policy outlines the necessary procedures that department
supervisors must go through to institute shift differential compensation for their
employees. But there is no requirement that supervisors actually award shift
differential pay or otherwise ensure that their employees receive shift differential.
Walsh argues that the purpose of the policy, “to provide additional compensation for
employees who are required to work a second, third or non-standard shift due to a
defined business need,” requires CME to provide shift differential payments to any
employee who works a qualifying shift. Id. But nothing in the purpose statement of
the policy indicates that each employee who works a qualified must shift receive
shift differential payments.
Walsh’s comparisons to the data center engineers, who operated on a similar
schedule to DCCI and received shift differential payments, fail to refute the fact
that employees’ shift differential compensation was left to the discretion of their
department managers. Walsh argues that the data center engineer director did not
have to formally exercise discretion before his employees began receiving shift
differential on their paychecks. Even so, nothing in the policy requires CME to treat
each department the same.5 As a result, CME is not obligated to pay plaintiff shift
differential pursuant to the 2012 policy.6
Petrowski’s oral statement
Next, Walsh argues that Petrowski’s statement to him that “[t]here is a shift
differential. There is a shift differential” created an enforceable contract, requiring
CME to pay him shift differential for qualifying shifts.7 As CME points out, to
survive summary judgment plaintiff must show that there was “a manifestation of
mutual assent on the part of two or more persons.” Hess, 668 F.3d at 452. Plaintiff
has failed to do so here. First, Petrowski’s acknowledgment that a shift differential
Walsh also argues that the 2012 Policy is not discretionary because: (1) Petrowski was not
aware of CME’s shift differential policy until 2016, and a person cannot exercise discretion
under a policy he has no knowledge of; and (2) had Petrowski exercised his discretion under
the policy, Human Resources would have been aware of that decision, and Francis would
not have emailed Tolsky to ask whether Walsh should be receiving shift differential for
qualifying shifts. Walsh also argues that Tolsky’s and Petrowski’s explanations for why
DCCI employees were not receiving shift differential payments were fabricated. But neither
Petrowski’s knowledge of the policy, nor his statements or actions in relation to it, affects
the fact that the policy is discretionary. The point is that shift differential pay was not
Walsh compares the language of the 2012 policy with that of a 2016 policy, which
explicitly states that management has the discretion to provide shift differential pay to
employees. However, considering the revised policy to determine the meaning of the
original would violate Rule 407 of the Federal Rules of Evidence and discourage efforts to
clarify contractual obligations. See Pastor v. State Farm Mut. Auto. Ins. Co., 487 F.3d 1042,
1045 (7th Cir. 2007).
CME also discusses the relevance of a 2010 blog post which Walsh came across,  at 9,
but Walsh does not rely on this blog post as a basis for his claims.
exists does not manifest intent to pay plaintiff a shift differential. Second, Plaintiff
has failed to establish his own manifestation of assent for the entire relevant time
period. He has admitted, for example, that when he saw the written policy for the
first time in 2013, “[he] knew [he] wouldn’t” receive a shift differential on any future
paychecks. Human Resources also told Walsh that he would not be receiving shift
differential payments. Walsh points out that he did not continue to inquire about
the shift differential policy for fear of retaliation, not because he did not believe he
should be receiving those payments. But even assuming Walsh believed he should
be getting shift differential payments, he has failed to demonstrate mutual assent,
and he has not shown that Petrowski’s statements entitled to him shift differential
Finally, even if Walsh had shown that either CME’s written policy or
Petrowski’s statements required CME to pay him shift differential, Walsh accepted
a modification to that agreement by continuing to work for CME after it had become
clear that he would not, in fact, receive shift differential. Because an at-will
employment contract is terminable at the will of either party, it can “be modified at
any time by either party as a condition of its continuance.” Swalley v.
Addressograph-Multigraph Corp., 158 F.2d 51, 54 (7th Cir. 1946). And “[u]nder
Illinois law, ‘[c]ontinued performance is seen as both acceptance and consideration’
for an at-will employment agreement.” Thomas v. Guardsmark, Inc., 381 F.3d 701,
706 (7th Cir. 2004) (quoting Schoppert v. CCTC Int’l, Inc., 972 F.Supp. 444, 477
(N.D. Ill. 1997). Thus, an employer’s promise to provide a benefit can be modified if
the employer later rescinds that promise and the employee continues working after
realizing the benefit will not be conferred. See Kamboj v. Eli Lilly & Co., No. 05 C
4023, 2007 WL 178434, at *8–9 (N.D. Ill. Jan. 18, 2007) (finding that an employee
who continued to work after she no longer expected to receive the salary her
employer promised her upon hiring, had modified her contract to include the lower
Walsh argues that there is no evidence that CME modified its 2012 policy,
and that even if there were, modification is a question of fact to be determined by
the fact-finder. While in some cases modification may be a question of fact
inappropriate for resolution at the summary judgment stage, here the parties do not
dispute the relevant material facts, and so summary judgment is appropriate. Aside
from his first paycheck, Walsh never received a shift differential payment. He
continued to work after his second paycheck, when the overpayment was recouped.
When he sought clarification about whether he would receive shift differential on
future paychecks, he was told he would not. He continued to work. Walsh admits
that upon seeing the written policy in 2013, he did not expect to receive shift
differential pay, and again, he kept working and accepting payment without shift
differential. As a result, even if plaintiff were at some point entitled to shift
differential per either the written policy or Petrowski’s statements, he accepted
CME’s modification of any such agreement by continuing to work without receiving
shift differential after his second paycheck.
There was no agreement to pay Walsh shift differential pay, and therefore,
Walsh’s regular pay under the applicable statutes did not include shift differential
pay. In turn, defendants are not liable for any wages under the FLSA, IMWL, or
Defendants’ motion for summary judgment  is granted. Plaintiff’s motion
for summary judgment  is denied. Enter judgment in favor of defendants and
terminate civil case.
Manish S. Shah
United States District Judge
Date: October 6, 2017
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