Drew v. Shoe Show, Inc.

Filing 82

MEMORANDUM AND ORDER, Granting in part and Denying in part 65 MOTION for Summary Judgment - Partial filed by Shoe Show, Inc. The Court Denies the motion without prejudice to the extent it addresses Count I. The Court Grants the motion to the extent it addresses Counts II and III, and the Court Dismisses Counts II and III without prejudice. Clerk of Court to enter judgment accordingly at the close of the case. Signed by Judge J. Phil Gilbert on 12/15/11. (bkl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
COLLEEN DREW,
Plaintiff,
v.
No. 10-cv-656-JPG-PMF
SHOE SHOW, INC., d/b/a SHOE SHOW
and d/b/a SHOE DEPT. and d/b/a
BURLINGTON SHOES,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on defendant Shoe Show, Inc.’s motion for summary
judgment (Doc. 65). Plaintiff Colleen Drew has responded to the motion (Doc. 80), and Shoe
Show has replied to that response (Doc. 81).
The Court has set forth the background of this case in its September 19, 2011, order
(Doc. 67):
Drew worked as a store manager for a Shoe Dept. retail shoe store in
Wood River, Illinois, from 2007 to February 2010. Shoe Dept. is one of the
divisions of defendant Shoe Show Inc.; Shoe Show is the other division. As a
store manager, Drew was required to work at least forty-eight hours per week,
and often worked more than that. Drew alleges that her primary or significant
duties were non-managerial and were of the sort typically performed by hourly
workers. For example, she alleges she did not have any responsibility for hiring
or firing the employees who worked in her store, was not given access to the
information and did not have the authority necessary to develop her store, and
was monitored, instructed and supervised by a district manager who was the de
facto store manager. Nevertheless, Shoe Show Inc. classified Drew as “exempt”
under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 213(a)(1).1
Consequently, it did not pay Drew at a rate of one and one-half times her normal
pay rate for hours worked over forty hours in one week as ordinarily required by

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29 U.S.C. § 213(a)(1) states, in pertinent part, “The provisions of . . . section 207 of this
title [overtime pay requirements] shall not apply with respect to – (1) any employee employed in
a bona fide executive, administrative, or professional capacity . . . .”

29 U.S.C. § 207(a)(1).2 Drew believes her classification as exempt was
erroneous, was a willful attempt by Shoe Show Inc. to pay her less than the FLSA
required and was part of a nationwide company practice. She believes other Shoe
Show Inc. store managers in the Shoe Dept. and Shoe Show divisions share her
plight.
Drew filed this lawsuit in August 2010 asserting the following claims:
Count I:
a claim for failure to pay overtime wages in violation of the FLSA,
29 U.S.C. §§ 207(a)(1) and 215(a)(2);
Count II:

a state law claim for money had and received; and

Count III:

a state law claim for unjust enrichment.

In its September 19, 2011, order the Court denied conditional collective action
certification of Count I under 29 U.S.C. § 216(b), so this action is now proceeding with a sole
plaintiff.
In its pending motion, Shoe Show asks for summary judgment on Count I on the grounds
that Drew’s action was filed beyond the two-year statute of limitations applicable to non-willful
unpaid overtime FLSA violations. See 29 U.S.C. § 255(a). It also seeks summary judgment on
Counts II and III on the grounds that those claims require the same proof – failure to pay
required overtime wages – as Count I and are therefore impliedly preempted by the FLSA. It
also requests summary judgment on Counts II and III on alternate grounds.
In response, Drew argues that the three-year statute of limitations applies to Count I
because Shoe Show’s FLSA violation was willful but that it is premature to decide the statute of
limitations issue because merits-based discovery has not occurred yet in this case. To this point,

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29 U.S.C. § 207(a)(1) states, in pertinent part,

Except as otherwise provided in this section, no employer shall employ any of his
employees who in any workweek is engaged in commerce . . . for a workweek
longer than forty hours unless such employee receives compensation for his
employment in excess of the hours above specified at a rate not less than one and
one-half times the regular rate at which he is employed.
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discovery has focused on collective action issues. Accordingly, she asks the Court to deny or
defer ruling on Shoe Show’s motion pursuant to Federal Rule of Civil Procedure 56(d). Drew
also concedes that Counts II and III are preempted by the FLSA.
Shoe Show replies that it does not object to the Court’s deferring ruling on its summary
judgment motion as to Count I pending further discovery but that it still requests immediate
summary judgment on Counts II and III.
Count I
The Court will deny Shoe Show’s motion for summary judgment on Count I without
prejudice pursuant to Rule 56(d)(1). Rule 56(d) (formerly Rule 56(f)) provides:
If a nonmovant shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
“A party seeking the protection of Rule [56(d)] must make a good faith showing that it cannot
respond to the movant’s affidavits. The rule requires the filing of an affidavit stating the reasons
for a claimant’s inability to submit the necessary material to the court.” United States v. All
Assets & Equip. of W. Side Bldg. Corp., 58 F.3d 1181, 1190 (7th Cir. 1995) (footnote and
citation omitted); accord Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1058 n. 5 (7th Cir.
2000).
Drew has made a sufficient showing of good cause for her inability to respond to Shoe
Show’s motion with respect to Count I, and the Court finds it appropriate to deny the motion
without prejudice pending merits-based discovery. The Court believes simply deferring a ruling
on the motion is inappropriate because the pending motion for summary judgment itself is
framed as if this were a collective action, which it is not. The Court also believes Shoe Show
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may want to include additional evidence obtained in merits-based discovery in support of its
summary judgment request. A revised summary judgment motion filed after the benefit of
discovery would be more helpful to the Court to expeditiously decide whether summary
judgment is warranted.
Counts II and III
With respect to Counts II and III, the Court will grant summary judgment on the grounds
of implied preemption by the FLSA. See Morgan v. SpeakEasy, LLC, 625 F. Supp. 2d 632,
659-60 (N.D. Ill. 2007); Sorensen v. CHT Corp., No. 03 C 1609, 2004 WL 442638, *5-*7 (N.D.
Ill. Mar.10, 2004). However, it will only dismiss those claims without prejudice, as the Court in
Anderson v. Sara Lee Corp., 508 F.3d 181, 183 (4th Cir. 2007), and Anderson v. Sara Lee Corp.,
383 Fed. App’x 279, 280 (4th Cir. 2010), indicated was appropriate for claims preempted by the
FLSA. See Nicholson v. UTi Worldwide, Inc., No. 3:09-cv-722-JPG-DGW, 2010 WL 551551,
*7 (S.D. Ill. Feb. 12, 2010). The merits of the claim that Shoe Show owes Drew overtime pay
will be resolved in Count I.
For the foregoing reasons, the Court GRANTS in part and DENIES in part Shoe
Show’s motion for summary judgment (Doc. 65). The Court DENIES the motion without
prejudice to the extent it addresses Count I. The Court GRANTS the motion to the extent it
address Counts II and III, and the Court DISMISSES Counts II and III without prejudice. The
Clerk of Court is DIRECTED to enter judgment accordingly at the close of the case.
IT IS SO ORDERED.
Dated: December 15, 2011
s/ J. Phil Gilbert
U.S. District Court Judge

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