Garecht v. Professional Transportation, Inc. et al

Filing 31

ORDER granting in part and denying in part 17 MOTION to Dismiss for Failure to State a Claim . Case may proceed as to Professional Transportation, Inc. Ronald D Romain terminated as individual defendant. Signed by Judge Staci M. Yandle on 01/05/2015. (rlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOHN GARECHT, individually and on behalf
of all similarly situated persons who were
employed by Defendants at terminals in the
State of Illinois,
Case No. 14-cv-0378-SMY-DGW
Plaintiffs,
vs.
PROFESSIONAL TRANSPORTATION, INC.
and RONALD D. ROMAIN,
Defendants.

MEMORANDUM AND ORDER
This matter comes before the Court on Defendants’ Motion to Dismiss for Failure to
State a Claim (Doc. 17) and accompanying Memorandum in Support (Doc. 18). Plaintiff filed a
Response (Doc. 20), and Defendants filed a Reply (Doc. 21). For the reasons that follow, the
Court grants in part and denies in part Defendants’ Motion.
In assessing whether dismissal is warranted under Rule 12(b)(6), the Court accepts as true
all well-pled factual allegations and draws all reasonable inferences in the plaintiff's favor in
order to determine whether the complaint sufficiently sets forth enough facts to state a claim
upon which relief can be granted. See Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir.2009); St.
John's United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir.2007); Hallinan v.
Fraternal Order of Police Chicago Lodge 7, 570 F.3d 811, 820 (7th Cir.2009).
Accepting Plaintiff’s allegations as true, the following are the facts: Union Pacific
Railroad was contracted by the Illinois Department of Transportation to perform certain upgrades
and improvements to railroad beds, tracks and crossing systems in conjunction with the Illinois

High-Speed Rail public works project. Defendants provided transportation services as a
subcontractor and hired Plaintiff and others similarly situated to drive Union Pacific railroad
crews around the construction site and to/from the terminal. Plaintiff’s position may traditionally
have been considered that of “train yard clerk” who historically would have been an employee of
the railroad. Plaintiff worked both on the site of the public works project and off the site in
transporting crews from their initial terminal when placed on duty and back to the terminal when
released from duty.
Plaintiff claims he and other workers providing transportation services to Union Pacific
crews are covered by the Illinois Prevailing Wage Act (IWPA) because they were employees of
a subcontractor engaged in a public works project within the state of Illinois. The IWPA
requires employers to pay “a wage of no less than the general prevailing hourly rate as paid for
work of a similar character in the locality in which the work is performed….” 820 ILSC § 130/1.
Defendants argue, however, that the Plaintiff is not covered by the IPWA because he does not
perform actual construction work, nor does he transport materials or equipment, as required by
the Act. 1 Additionally, Defendants argue that Ronald Romain, as President and Secretary of
Professional Transportation, Inc., cannot be held personally liable under the Act because his
authority and actions regarding pay practices were only on behalf of Professional Transportation,
Inc.
The threshold question then, is whether Plaintiff is covered by the IPWA. If he is, the
case may proceed. If he is not, the Complaint must be dismissed because there is no claim upon
which the Court can grant relief. As the questions at issue are those of statutory construction, the
Court’s primary objective is to ascertain and give effect to the intent of the legislature. Hocraffer
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Defendants’ first point of argument addresses a claim under the Illinois Procurement Act. However, because
Plaintiff is not stating a claim under this statute, the Court will not address this point of argument.

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v. Trotter Gen. Contracting, Inc., 990 N.E. 2d 390, 391-92 (Ill. App. 2013) (citing Town &
Country Utils., Inc. v. Illinois Pollution Control Board, 866 N.E. 2d 227 (Ill. Sup. Ct. 2007)).
The best evidence of legislative intent is the plain language of the statute. Id. at 392 (citing
Lulay v. Lulay, 739 N.E. 2d 521 (Ill. Sup. Ct. 2000)).
The IPWA states, “This Act applies to the wages of laborers, mechanics and other
workers employed in any public works, as hereinafter defined, by any public body and to anyone
under contracts for public works.” 820 ILCS § 130/2. The statute in Section 3 further specifies
which employees are covered:
Not less than the general prevailing rate of hourly wages for work of a
similar character on public works in the locality in which the work is performed,
and not less than the general prevailing rate of hourly wages for legal holiday and
overtime work, shall be paid to all laborers, workers and mechanics employed
by or on behalf of any public body engaged in the construction or demolition
of public works. This includes any maintenance, repair, assembly, or disassembly
work performed on equipment whether owned, leased, or rented. Only such
laborers, workers and mechanics as are directly employed by contractors or
subcontractors in actual construction work on the site of the building or
construction job, and laborers, workers and mechanics engaged in the
transportation of materials and equipment to or from the site, but not
including the transportation by the sellers and suppliers or the manufacture
or processing of materials or equipment, in the execution of any contract or
contracts for public works with any public body shall be deemed to be
employed upon public works. The wage for a tradesman performing
maintenance is equivalent to that of a tradesman engaged in construction or
demolition.
820 ILCS § 130/3 (emphasis added).
In the first sentence, the statute covers all workers employed on behalf of any public body
engaged in the construction of public works. Plaintiff is a worker employed on behalf of the
Illinois Department of Transportation by way of a subcontract with Union Pacific Railroad.
These entities are engaged in the construction of the High-Speed Rail Project which qualifies as
a public works project. However, the third sentence narrows the scope of who is considered

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employed upon public works. Specifically, only workers directly employed by a contractor or
subcontractor in actual construction work on the site of the job in the execution of a contract for
public works shall be deemed to be employed upon public works. Plaintiff is a worker directly
employed by a subcontractor, namely Professional Transportation, Inc. Plaintiff drives railroad
construction crews for Union Pacific on the site of the job in the execution of a contract for
public works. Defendants dispute, however, that they (as subcontractor) and Plaintiff
specifically (as an individual worker) are engaged in “actual construction work.” Truly, Plaintiff
is simply a driver who transports the construction crews.
Seeking further guidance in defining “construction,” the Court looks to Section 2 of the
IPWA. There, the statute defines the term “construction” as “all work on public works involving
laborers, workers or mechanics.” 820 ILCS § 130/2 (emphasis added). The definition goes on to
say, “[t]his includes any maintenance, repair, assembly, or disassembly work performed on
equipment….” 820 ILCS § 130/2. By the language of this section and the choice of nonspecific words such as “all work… involving,” it seems the legislature intended to create a broad
definition of the term “construction,” even extending the definition to include equipment
maintenance and repair workers. Clearly, the legislature intended to cover some employees who
directly facilitated construction even if such employees did not engage in construction as
construction workers themselves.
No court has yet examined whether subcontractor employees who perform duties similar
to that of Plaintiff are covered by the IPWA. The two cases relied on by Defendant address
employees who were clearly excluded from coverage by the plain language of the statute.
Sparks & Wiewel Constr. Co. v. Martin concerns an employee of a materials supplier who is
excluded from the statute by the language “…but not including the transportation by the sellers

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and suppliers.” 620 N.E. 2d 533 (Ill. App. 1993). Hocraffer concerns an employee who
performed work exclusively in his shop and not on site. 990 N.E. 2d 390. Plaintiff, however, is
an employee of a subcontractor of Union Pacific and not an employee of a supplier or seller.
Plaintiff’s work is not exclusively off site. These cases are not sufficiently analogous for the
Court to rely upon them as binding precedent.
Plaintiff compares his duties to those traditionally performed by “train yard clerks.”
Accepting Plaintiff’s allegations as true, a train yard clerk was historically a direct employee of
the railroad and served a crucial function in facilitating the construction crew. Plaintiff’s work
involves “laborers, workers or mechanics” because he drives the railroad crews around the
construction site and therefore directly facilitates their work. Without a driver, the crews would
be unable to efficiently carry out their duties. It is reasonable that the legislature intended “all
work” to include transportation services. Taking into consideration all relevant sections of the
IWPA, Plaintiff is not clearly excluded from coverage.
Further, the IWPA in Section 4 references the Department of Labor for the purpose of
ascertaining prevailing wages for each type of worker needed to execute the contract. Plaintiff
directs the Court to the Department of Labor’s job classification “Class 1 Truck Driver,” which
expressly includes “pickup trucks when hauling… workers to and from and on-the-job site.”
This supports Plaintiff’s claim that Plaintiff’s class of worker was anticipated by the Department
of Labor and expected to be paid prevailing wages. Accordingly, Defendants’ Rule 12(b)(6)
Motion to Dismiss is denied as to Plaintiff’s IWPA claim against Professional Transportation,
Inc.
Defendants’ Motion as to the claims alleged against Ronald D. Romain is granted.
Defendants argue Romain is not subject to liability under the IWPA because the statute in

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Section 6 provides criminal penalties for agents, employees, officers, contractors and
subcontractors, but in Section 11 establishes civil liability only for contractors and subcontractors
with no mention of agents, employees or officers. Plaintiffs respond by incorporating other
statutes that include individuals in defining a “subcontractor” and include by footnote multiple
Fair Labor Standards Act cases in which Romain does not challenge his status as an individual
Defendant.
However, Plaintiffs claims here are brought solely under the IPWA and the class actions
statute. Defendants are correct. In the IPWA, the Illinois legislature created a limited private
cause of action for actual damages. If the legislature had intended to create civil liability for
agents, employees and officers in Section 11, they clearly knew how to do so by simply
mirroring the language previously used in Section 6. They also could have adopted language
similar to that of a number of other employment statutes that clearly provide for individual civil
liability. They did not. The Court can only conclude that the legislature did not intend to create
civil liability for individuals such as Romain. He will be dismissed as a Defendant. The case
may proceed as to Professional Transportation, Inc.

IT IS SO ORDERED.
DATE: January 5, 2015

s/ Staci M. Yandle
STACI M. YANDLE
DISTRICT JUDGE

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