Bruger v. Olero, Inc., Case No. 19 CV 2277

• Decision Date: 21 January 2019
• Docket Number: Case No. 19 CV 2277
• Citation: 434 F.Supp.3d 647
• Parties: Stepan BRUGER and Dmytro Bruger, Plaintiffs, v. OLERO, INC., EMB Group, Inc., Oleg Romanyuk, and Eugene Minochkin, Defendants.
• Court: U.S. District Court — Northern District of Illinois

434 F.Supp.3d 647

Stepan BRUGER and Dmytro Bruger, Plaintiffs,

v.OLERO, INC., EMB Group, Inc., Oleg Romanyuk, and Eugene Minochkin, Defendants.

Case No. 19 CV 2277

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

Signed January 21, 2019

Filed January 21, 2020

Julia Bikbova, Bikbova Law, Northbrook, IL, for Plaintiffs.

Andrew Riley Brehm, Scopelitis, Garvin, Light, Hanson & Feary, P.C., Milwaukee, WI, Andrew Joseph Butcher, Charles Andrewscavage, Scopelitis, Garvin, Light, Hanson & Feary, P.C., Chicago, IL, for Defendants.

OPINION AND ORDER

Joan H. Lefkow, U.S. District Judge

Plaintiffs Stepan Bruger and Dmytro Bruger bring several claims alleging defendants underpaid them and a similarly situated class for their work as truck drivers. Defendants move to dismiss the complaint for failure to state a claim. The motion is granted in part and denied in part.¹

BACKGROUND²

The Brugers, who are brothers, worked as truck drivers for defendants Olero, Inc., and EMB Group, Inc., which are trucking companies owned by defendants Oleg Romanyuk and Eugene Minochkin. (Dkt. 13 ¶ 1.) The Brugers allege that defendants underpaid them and misclassified them as independent contractors rather than employees. (Id. )

Stepan Bruger learned about an opening at the defendant companies in October 2016 from reading the "Chas I Podii" Ukrainian-language newspaper distributed in Chicago. (Id. ¶ 35.) He called the number listed in the paper and was invited for an interview. (Id. ) The interview took place at Olero’s offices in Chicago and involved Romanyuk and the safety manager for Olero and EMB. (Id. ¶¶ 36, 174.) Romanyuk told Stepan that he would be driving a truck provided by the company, that the job would require a full-time commitment, and that he could not work for any other trucking company.³ (Id. ¶¶ 37-38.) Romanyuk also told him that he would be paid $0.50 for each mile driven, including for "empty miles." (Id. ¶ 38.) Stepan accepted the offer. (Id. ¶ 39.) He "was given some papers to sign" but could not understand most of them due to his limited English language skills. (Id. ¶ 40.)

Dmytro Bruger learned about employment with defendants through his brother. (Id. ¶ 57.) He similarly was interviewed at Olero’s offices, by Romanyuk and Minochkin. (Id. ¶ 58.) Romanyuk told Dmytro that he would be driving a truck provided by the company, that the job would require a full-time commitment, that he could not work for any other trucking company, and that he would be paid $0.50 per mile, including empty miles. (Id. ¶¶ 60-63.) Dmytro accepted the offer, at which point Minochkin presented him with a stack of documents to sign. (Id. ¶ 61.) Dmytro signed them despite not being able to understand them due to his limited English skills. (Id. ) Dmytro states that he "had no reason to believe that the papers would have different terms than what ... Romanyuk and Minochkin promised him." (Id. ¶ 62.)

Both named plaintiffs make similar allegations about how their relationship with the defendants unfolded in reality. They allege that, while all drivers were required to complete log books showing the distance they drove, Romanyuk and Minochkin would regularly alter those books to lower drivers’ miles and their corresponding compensation. (Id. ¶¶ 44-49, 66.) Defendants also reduced the Brugers’ compensation based on "charges" they had not disclosed when the Brugers took their jobs. (Id. ¶¶ 51, 69.) Charges were assessed for things like completing the log books, washing trucks, repairing the trucks, and violations assessed by the Department of Transportation. (Id. ¶¶ 51, 69.)

Stepan Bruger alleges he was underpaid for at least 10% of the actual miles he drove for defendants, amounting to at least $7,150 over the eleven months of his employment. (Id. ¶ 49.) He also alleges defendants imposed unwarranted charges of $7,538.83, yielding total underpayment of at least $16,188.83. (Id. ¶¶ 52, 53.)

Dmytro Bruger alleges he was underpaid $5,150 based on defendants’ false reduction of his mileage driven and assessed $7,870.00 in unwarranted charges, yielding total underpayment of at least $15,220.00. (Id. ¶¶ 67-71.) Dmytro worked for defendants for nine months. (Id. ¶ 74.)

The Brugers allege defendants also failed to fully compensate a class of similarly-situated truck drivers, defined as "[a]ll persons who have worked for Defendant companies as truck drivers and truck driver trainees in Illinois or otherwise have driven Defendant companies’, their predecessors’, successors’, subsidiaries’ and/or affiliated companies’ trucks at any time during the relevant statutory period, and who personally provided freight cargo transportation services pursuant to independent contract agreements entered into individually or on behalf of other entities to Defendant companies and who have not been classified as employees of Defendant companies." (Id. ¶ 121.)

The Brugers allege defendants failed to pay putative class members for approximately 10% of the actual miles they drove and made illicit deductions from wages earned similar to those they say they experienced. (Id. ¶¶ 75-79.) The Brugers also allege that defendants charged some truckers "deposits" or "escrow" under which they retained at least $1,500 from the truckers’ initial compensation but either never repaid the deposits or repaid them after "great delay." (Id. ¶ 81.) The Brugers further allege defendants conspired to misclassify truckers as independent contractors by "avoiding the application of payroll tax withholding and remittance under the US Tax Code," creating fictitious equipment leases between the truckers and the companies, and mandating independent contractor agreements that defendants required drivers to sign in the capacity of corporate entities owned by the drivers. (Id. ¶¶ 90–91.) The putative class members at all times performed their work by driving trucks owned by one of the defendant companies. (Id. ¶ 93.)

The Brugers originally filed this lawsuit in the Circuit Court of Cook County. (Id. ¶ 26.) Defendants removed the action to this court in April 2019. (Id. ¶ 34.) Plaintiffs filed an amended complaint bringing claims under the Illinois Wage Payment Collection Act ("IWPCA") and various Illinois common law theories generally seeking unpaid compensation. (Dkt. 13.) Defendants now move to dismiss plaintiffs’ complaint in its entirety for failure to state a claim. (Dkt. 14.) Defendants attach to their motion "Independent Contractor Agreements" that both Brugers signed, which defendants argue govern the entirety of the parties’ relationship and bar the Brugers’ claims. (Dkts. 15-1 & 15-2.)

ANALYSIS

I. Legal Standard

A motion to dismiss under Rule 12(b)(6) challenges a complaint for failure to state a claim on which relief may be granted. In ruling on a Rule 12(b)(6) motion, the court accepts as true all well-pleaded facts in the plaintiff’s complaint and draws all reasonable inferences from those facts in the plaintiff’s favor. Active Disposal, Inc. v. City of Darien , 635 F.3d 883, 886 (7th Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim’s basis but must also establish that the requested relief is plausible on its face. See Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007). The allegations in the complaint must be "enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S. Ct. 1955. At the same time, the plaintiff need not plead legal theories; it is the facts that count. Hatmaker v. Mem'l Med. Ctr. , 619 F.3d 741, 743 (7th Cir. 2010).

II. Documents To Be Considered on the Motion

As an initial matter, plaintiffs argue that the court should not consider the independent contractor agreements they signed in deciding defendants’ motion to dismiss. (Dkt. 19 at 3.) Generally speaking, a court deciding a Rule 12(b)(6) motion may consider only the well-pleaded allegations in the plaintiff’s complaint. Rosenblum v. Travelbyus.com Ltd. , 299 F.3d 657, 661 (7th Cir. 2002). An exception exists, however, for documents that are "referred to in the plaintiff’s complaint and are central to his claim." Id. Plaintiffs acknowledge making reference to the independent contractor agreements in their complaint but argue the agreements are not central to their claims because they "brought their claims pursuant to the employment relationship in fact and the oral representations Defendants made to Plaintiffs." (Dkt. 19 at 3.) That argument fails because the question of centrality is not up to the plaintiffs alone. In Rosenblum , the Seventh Circuit held that a defendant was entitled to append an employment agreement to its motion to dismiss where it argued an arbitration clause in that agreement preempted plaintiff’s claims. 299 F.3d at 661. Similarly here, defendants argue plaintiffs’ claims are defeated by the integration clause of the independent contractor agreements. The court thus must consider those agreements.⁴

III. IWPCA Claim (Count I)

The purpose of the IWPCA is "to provide employees with a cause of action for the timely and complete payment of earned wages or final compensation, without retaliation from employers." Costello v. BeavEx, Inc. , 810 F.3d 1045, 1050 (7th Cir. 2016) (quoting Byung Moo Soh v. Target Mktg. Sys., Inc., 353 Ill. App. 3d 126, 288 Ill.Dec. 455, 817 N.E.2d 1105, 1107 (2004) ). Accordingly, the IWPCA imposes a variety of wage-related obligations on employers, such as paying employees within certain time periods and prohibiting deductions from wages without express written consent given at the time of the deduction. See 820 Ill. Comp. Stat. 115/3, 4, & 9; Costello , 810 F.3d at 1048 ; Lupian v. Joseph Cory Holdings LLC , 905 F.3d 127, 133 (3d Cir. 2018).

An IWPCA claim must be based on a valid contract or employment agreement. Hess v. Kanoski & Assocs. , 668 F.3d...