Zoltek v. Safelite Glass Corp., 94 C 2903.

• Decision Date: 03 May 1995
• Docket Number: No. 94 C 2903.,94 C 2903.
• Citation: 884 F. Supp. 283
• Parties: Steven ZOLTEK, Plaintiff, v. SAFELITE GLASS CORP., a Delaware Corporation, Defendant.
• Court: U.S. District Court — Northern District of Illinois

884 F. Supp. 283

Steven ZOLTEK, Plaintiff, v. SAFELITE GLASS CORP., a Delaware Corporation, Defendant.

No. 94 C 2903.

United States District Court, N.D. Illinois, Eastern Division.

May 3, 1995.

Laurie Ellen Leader, Keith L. Hunt, Leader & Hunt, P.C., Northbrook, IL, for plaintiff.

Arthur B. Smith, Jr., Tracey Lynne Truesdale, Murphy, Smith & Polk, Chicago, IL, Peter D. Stergios, Epstein, Becker & Green, P.C., New York City, for defendant.

OPINION AND ORDER

NORGLE, District Judge:

Before the court are the parties' cross motions for summary judgment. For the reasons stated below, Defendant's motion is granted and Plaintiff's motion is denied.

FACTS¹

Plaintiff Steven Zoltek ("Zoltek") brought this action against Defendant Safelite Glass Corporation ("Safelite") alleging that Safelite did not pay him overtime wages to which he was entitled in violation of the Fair Labor Standards Act, 29 U.S.C. §§ 206, 207 (the "Act"). This court has jurisdiction pursuant to 29 U.S.C. § 216(b).

Safelite is a Delaware corporation engaged in the business of distributing and installing automotive glass. Zoltek has been employed by Safelite since November 26, 1990. From that date to April 18, 1993, with the exception of a three and one-half month period, Zoltek should have been classified and compensated as a non-exempt employee under the overtime and minimum wage requirements of the Act. However, during this time period, he was hired by Safelite as an exempt employee, compensated on a salaried basis, and the parties acted as though he were properly classified as exempt from the overtime and minimum wage requirements.

From the date he was hired until October 7, 1991, Safelite paid Zoltek at annual salary rate of $35,000. From October 7, 1991, through November 1, 1992, he was paid at an annual rate of $36,500. From November 1, 1992, through April 18, 1992, Safelite paid Zoltek at an annual rate of $37,800. Throughout the entire period between the date he was hired until April 18, 1992, Zoltek was paid twice per month.

On April 18, 1993, Zoltek's pay status was changed from exempt to non-exempt, and from that date onwards he has been properly compensated for overtime hours worked after that date.

From November 26, 1990, to April 18, 1993, the parties never expressly agreed that (1) Zoltek would be compensated for overtime on a fluctuating work week basis, (2) that his salary was paid to compensate him for all hours worked, or (3) that his salary was paid to compensate him for all hours worked on a straight-time basis. Nonetheless, during this time period, Zoltek was compensated as described above on a salaried basis. He accepted his paychecks and continued his employment without protesting or questioning his compensation.

Zoltek states in his Response to Defendant's Statement of Material Facts that he periodically questioned his compensation. He does so without citation to anything in the record supporting his assertion. Local Rule 12(N) of the United States District Court for the Northern District of Illinois states that a party opposing summary judgment must file:

A concise response to the movant's 12(M) statement that shall contain ... a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon....

Local Rule 12(N)(3)(a). All material facts properly set forth in the movant's 12(M) Statement will be deemed admitted if not properly controverted by the non-movant's 12(N) statement. Local Rule 12(N)(3)(b). The Seventh Circuit has consistently upheld strict application of Local Rule 12(N). Rosemary B. v. Board of Educ., No. 94-3406, 52 F.3d 156, 159, (7th Cir.1995); Johnson v. Gudmundsson, 35 F.3d 1104, 1108 (7th Cir. 1994); Flaherty v. Gas Research Inst., 31 F.3d 451, 453, 455 n. 4 (7th Cir.1994); Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir.1994); Highlands Ins. Co. v. Lewis Rail Serv. Co., 10 F.3d 1247, 1251 n. 6 (7th Cir.1993); Stewart v. McGinnis, 5 F.3d 1031, 1034 (7th Cir.1993); Tobey v. Extel/JWP, Inc., 985 F.2d 330, 333 (7th Cir.1993); Valenti v. Qualex, Inc., 970 F.2d 363, 368-69 (7th Cir.1992); Appley v. West, 929 F.2d 1176, 1179-80 (7th Cir.1991); Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101, 1103 (7th Cir.1990). Therefore, Safelite's assertion that Zoltek accepted his paycheck without ever making a protest is admitted.

DISCUSSION

Federal Rule of Civil Procedure 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Salima v. Scherwood South, Inc., 38 F.3d 929, 931 (7th Cir. 1994); Transportation Communications Int'l Union v. CSX Transp., Inc., 30 F.3d 903, 904 (7th Cir.1994). Summary judgment is not a discretionary remedy and must be granted when the movant is entitled to it as a matter of law. Jones v. Johnson, 26 F.3d 727, 728 (7th Cir.1994). Even though all reasonable inferences are drawn in favor of the party opposing the motion, Associated Milk Producers, Inc. v. Meadow Gold Dairies, Inc., 27 F.3d 268, 270 (7th Cir.1994), presenting only a scintilla of evidence will not suffice to oppose a motion for summary judgment, Walker v. Shansky, 28 F.3d 666, 671 (7th Cir. 1994). Nor will some metaphysical doubt as to the material facts suffice. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986).

Moreover, the disputed facts must be those that might affect the outcome of the suit to properly preclude summary judgment. Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir.1994). A dispute about a material fact is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Therefore, the non-moving party is required to go beyond the pleadings with affidavits, depositions, answers to interrogatories, and admissions on file to designate specific facts showing a genuine issue for trial. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991).

Section 7(a)(1) of the Act provides that no employer shall employ an employee for more than forty hours per week unless it pays the employee at least one and one-half times his normal rate of pay. 29 U.S.C. § 207(a)(1). However, under § 213(a)(1), an employee working in an executive, administrative, or professional capacity is exempt from the requirements of § 207.

Zoltek contends that he is entitled to one and one-half his regular rate of pay for all hours worked over forty during the contested time period ("time-and-a-half"). He argues that the proper method for computing his regular rate of pay is to divide his weekly salary by forty hours. Safelite, on the other hand, argues that Zoltek has already been paid for all hours worked and is only entitled to an additional one-half the regular rate for hours worked over forty ("half-time"). Safelite contends that Zoltek's regular rate of pay should be calculated by dividing his weekly salary by the number of hours worked in each separate week.

Underlying Safelite's argument is its assertion that the undisputed facts show that there was an implied-in-fact contract between it and Zoltek such that Zoltek's salary compensated him for all hours worked. Zoltek contends that his salary compensated him only for forty hours per week.

Where the parties' actions and the circumstances demonstrate that the plaintiff was aware of a particular condition of employment, the employee's acceptance of, and continued, employment manifests acceptance of the condition. Williams v. Jacksonville Terminal Co., 315 U.S. 386, 398, 62 S.Ct. 659, 667, 86 L.Ed. 914 (1942); Intermountain Rural Elec. Ass'n v. N.L.R.B., 984 F.2d 1562, 1568 (10th Cir.1993); Bodie v. City of Columbia, S.C., 934 F.2d 561, 566 (4th Cir.1991); Brock v. El Paso Natural Gas Co., 826 F.2d 369, 374 (5th Cir.1987); Harrison v. City of Clarksville, Tenn., 732 F.Supp. 810, 814 (M.D.Tenn.1990). However, if the employee contemporaneously protests, there is no implied agreement to the condition. Johnson v. City of Columbia, S.C., 949 F.2d 127, 131 (4th Cir.1991); Beebe v. United States, 640 F.2d 1283, 1291 (Ct.Cl.1981).

In the case at bar, the undisputed facts demonstrate that for almost two and one-half years the parties conducted themselves as if Zoltek were properly classified as an exempt employee. He worked more than forty hours in many weeks and was never compensated for overtime. He never protested the lack of compensation. His hours per week varied considerably and his paycheck was always the same. Therefore, he impliedly consented to payment at a fixed sum per week regardless of the hours worked. That the parties never expressly agreed to this arrangement is irrelevant; their agreement is implied from their conduct.

Zoltek directs the court's attention to Safelite's payroll reports and a document in his personal file, both of which indicate a pay rate of $16.83 per hour for 86.67 hours for bimonthly pay periods between November 26, 1990 and July 1, 1991.² In addition, his paycheck stubs also contained a column indicating 86.67 hours per pay period. Zoltek contends that these documents indicate the parties intended that he be paid on an hourly basis. Zoltek's contention is meritless. In its Local Rule 12(N) Statement, Safelite explains that the columns for hourly rate and hours worked in these documents are accounting artifacts that were required for the payroll system. All exempt employees' paycheck stubs contained the same references.³ The hour references on paycheck stubs of employees classified as...