Barker v. Quick Test, Inc.

• Decision Date: 15 March 2016
• Docket Number: 13 C 4369
• Parties: PATRICIA BARKER and WILLIAM BARKER, Plaintiffs, v. QUICK TEST, INC. and MVL GROUP INC., Defendants.
• Court: U.S. District Court — Northern District of Illinois

PATRICIA BARKER and WILLIAM BARKER, Plaintiffs, v. QUICK TEST, INC. and MVL GROUP INC., Defendants.

13 C 4369

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

March 15, 2016

Judge Feinerman

MEMORANDUM OPINION AND ORDER

Patricia Barker and William Barker allege that Quick Test, Inc. and its former parent, MVL Group Inc., violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., the Illinois Minimum Wage Law ("IMWL"), 820 ILCS 105/1 et seq., and the Illinois Wage Payment and Collection Act ("IWPCA"), 820 ILCS 115/1 et seq., by failing to compensate them for all hours worked, failing to pay required overtime, and retaliating against them for bringing this suit. Doc. 39. Discovery has closed and a jury trial is set for May 16, 2016. Doc. 112.

Quick Test has moved for summary judgment on the wage-and-hour claims and partial summary judgment on the retaliation claims—summary judgment is sought on William's retaliatory discipline, scheduling, and termination claims and on Patricia's retaliatory scheduling claim as it pertains to an alleged work hour reduction in January 2014, and is not sought on William's retaliatory denial of a promotion claim and Patricia's retaliatory termination claim and retaliatory discipline claims (including retaliatory scheduling other than the alleged January 2014 work hour reduction)—while MVL Group has moved for summary judgment on all claims. Doc. 119. MVL Group is granted summary judgment as to all claims against it, and Quick Test is granted summary judgment on: (1) all FLSA and IMWL claims; (2) William's IWPCA claims; (3) William's retaliatory discipline claim insofar as it pertains to warnings or incidents other than the warning on January 20, 2014; and (4) William's retaliatory scheduling claim. Summary judgment is denied on: (1) Patricia's IWPCA claims; (2) William's retaliatory discipline claim insofar as it pertains to the warning on January 20, 2014; (3) William's retaliatory termination claim; and (4) Patricia's retaliatory scheduling claim. Plaintiffs' motion to strike portions of Defendants' affidavits, Doc. 132, is denied, and Plaintiffs' motion to deem certain facts admitted, Doc. 144, is denied except with respect to ¶¶ 72-73 of their Local Rule 56.1(b)(3)(C) statement, which are deemed admitted.

Background

A. Evidentiary Issues

Before setting forth the facts, the court resolves the following evidentiary issues.

1. Plaintiffs' Use of Their Interrogatory Answers

In disputing several paragraphs of Defendants' Local Rule 56.1(a)(3) statement, Plaintiffs' Local Rule 56.1(b)(3)(B) response cites their answers to Defendants' interrogatories. Doc. 130 at ¶¶ 19-20, 22-25, 27-29; see also Doc. 141 at ¶¶ 3-5, 101. Defendants contend that Plaintiffs cannot use their interrogatory answers as evidence on summary judgment because those answers violate 28 U.S.C. § 1746. Doc. 138 at 4; Doc. 141 at ¶¶ 3-5. If the interrogatory answers are not admissible, Plaintiffs may not use them to oppose summary judgment. See Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704 (7th Cir. 2009) ("To defeat a summary judgment motion ... a party may rely only on admissible evidence.").

Section 1746, which governs unsworn statements, provides in relevant part:

Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing ofthe person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:

...

(2) If executed within the United States, its territories, possessions, or commonwealths: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).

(Signature)".

28 U.S.C. § 1746(2). The filed versions of Plaintiffs' interrogatory answers attach this page signed by Patricia and a materially identical page signed by William:

AFFIANT'S SWORN SIGNATURE TO ANSWERS

STATE OF ILLINOIS

COUNTY OF ___

SS

The Undersigned, the Plaintiff ___, on oath deposes and states that he/she has read the foregoing Interrogatory and the Answers thereto, and the Answers given are true end correct, to the best of Affiant's knowledge and belief.

/s/_________

Doc. 131-4 at 17-18. These pages do not contain the precise language set forth in § 1746(2), as they do not state the execution date or that they were sworn under penalty of penalty of perjury. So the question becomes whether the pages are "in substantially the ... form" as the language set forth in § 1746(2).

In the summary judgment context, the Seventh Circuit has approved the use of sworn declarations that quote an earlier interrogatory answer, see Anderson v. Credit Bureau Collection Servs., Inc., 422 F. App'x 534, 537 (7th Cir. 2011), and of unsworn statements that satisfy§ 1746, see Owens v. Hinsley, 635 F.3d 950, 954-55 (7th Cir. 2011) (collecting cases for the proposition that "a declaration under § 1746 is equivalent to an affidavit for purposes of summary judgment"); Tyler v. Runyon, 70 F.3d 458, 462 & n.4 (7th Cir. 1995), but it has repeatedly held that an unsworn statement that "did not subject [the declarant] to the penalties for perjury[] was not within the range of evidence that [a] district court could consider." DeBruyne v. Equitable Life Assurance Soc'y of U.S., 920 F.2d 457, 471 (7th Cir. 1990); see also Jajeh v. Cook Cnty., 678 F.3d 560, 567-68 & n.3 (7th Cir. 2012) (same); McConnell v. Ritz-Carlton Watertower, 39 F. App'x 417, 420 (7th Cir. 2002) (same); United States v. Wellman, 830 F.2d 1453, 1467 (7th Cir. 1987) (same); Pfeil v. Rogers, 757 F.2d 850, 859 & n.15 (7th Cir. 1985) ("Affidavits are admissible in summary judgment proceedings if they are made under penalties of perjury; only unsworn documents purporting to be affidavits may be rejected."). Here, Plaintiffs' interrogatory answers are not dated and contain no verification or statement that they were made under penalty of perjury. Doc. 131-14 at 17-18. The answers therefore do not satisfy § 1746 and cannot be deployed on summary judgment.

This result finds support in decisions from other circuits. The Second Circuit recently summarized the operation of § 1746:

Section 1746 provides that an unsworn matter may be treated as sworn, provided that it is "prove[n] by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the ... form" of the model declaration provided. 28 U.S.C. § 1746 (emphasis added). Parsing the declaration provided in the statute reveals its substantive elements: the declarant must (1) "declare (or certify, verify, or state)," (2) "under penalty of perjury," (3) that the matter sworn to is "true and correct."

In re World Trade Ctr. Disaster Site Litig., 722 F.3d 483, 488 (2d Cir. 2013). Applying that standard, the Second Circuit held that the "substitution of 'subject to punishment' for 'under penalty of perjury'" in an unsworn statement "is a substantial departure from the substance of thedeclaration provided in § 1746, and thus, does not comply with the statute." Ibid. The court reasoned:

Inclusion of the language "under penalty of perjury" is an integral requirement of the statute for the very reason that it impresses upon the declarant the specific punishment to which he or she is subjected for certifying to false statements. Moreover, as the Fifth Circuit has observed, omission of the phrase "under penalty of perjury" would "allow[] the affiant to circumvent the penalties for perjury in signing onto intentional falsehoods." Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988). We hold that 28 U.S.C. § 1746 requires that a certification of the truth of a matter be expressly made under penalty of perjury. Any other result would be contrary to the plain language of the statute and the objective sought to be advanced by it.

Ibid. (footnote omitted).

Other circuits adhere to this approach. See McCaskill v. Ray, 279 F. App'x 913, 915 (11th Cir. 2008) (on summary judgment, rejecting an unsworn statement because it did not "include a handwritten averment, signed and dated, that the statement is true under the penalties of perjury"); United States v. Berry, 219 F. App'x 290, 292 & n.2 (4th Cir. 2007) ("Berry's statement in his notice of appeal attached as an exhibit does not comport with the requirements of ... 28 U.S.C. § 1746, as it is not notarized, makes no reference to the potential penalty for perjury, and is not specifically dated."); Elder-Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir. 2006) ("[T]he affiants failed to execute their affidavits under penalty of perjury as mandated by § 1746. Therefore, we hold that the district court was authorized to exclude sua sponte such affidavits from its consideration of the first summary judgment motion."); United States v. Streck, 62 F. App'x 575, 576-77 (6th Cir. 2003) (holding that a notice of appeal that was neither sworn under penalty of perjury nor notarized violated § 1746). One outlier concerns a pro se litigant who quickly corrected his failure to declare under penalty of perjury that his testimony was true and correct. See Davis v. Fernandez, 798 F.3d 290, 291-92 (5th Cir. 2015). Plaintiffshere are not pro se, and they have made no effort to correct the signature pages in the many months since they served their interrogatory answers.

Plaintiffs respond that because their...