Dawkins v. NR 1 Transp.

Decision Date08 September 2021
Docket Number20 C 4063
PartiesSTEFANEE DAWKINS, on behalf of herself and others similarly situated, Plaintiff, v. NR 1 TRANSPORT, INC., ZBA, Inc., and NERIJUS ZITKEVICIUS Defendants.
CourtU.S. District Court — Northern District of Illinois


After working as a truck driver for Defendants NR 1 Transport, Inc. (NR 1) and ZBA, Inc. for five months, Plaintiff Stefanee Dawkins asked the companies' owner, Defendant Nerijus Zitkevicius, to pay her both the wages for her final week of work and the amounts withheld in an “escrow” account. Zitkevicius refused. In this action, Plaintiff alleges violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and the Illinois Wage Payment and Collection Act (“IWPCA”), 820 ILCS 115/1, et seq. She also asserts state law claims of conversion and unjust enrichment. Dawkins contends other drivers were similarly denied pay and thus asks the court to certify a “collective action” under the FLSA and to authorize notice to the other drivers of their right to opt in to her FLSA claim. Before the court today is Defendants' motion to dismiss Plaintiff's Amended Complaint for failure to state a claim, as well as Plaintiff's motion to certify a conditional collective action. For the following reasons, Defendants' motion to dismiss [34] is granted in part and denied in part. Plaintiff's motion for conditional certification [18] is granted.

A. Allegations from the Amended Complaint

In deciding Defendants' motion to dismiss, the court accepts the following allegations as true: Plaintiff Stefanee Dawkins worked as a truck driver for ZBA from approximately September 2018 to November 2018.[1] (Am. Compl. ¶ 4.) ZBA is an Indiana corporation that operates a truckyard in Joliet, Illinois and is owned and operated by Defendant Nerijus Zitkevicius. (Id. ¶¶ 5, 7.) In November 2018, ZBA “purported to terminate Plaintiff's employment ” and told her she would begin driving for Defendant NR 1 instead. (Id. ¶ 22.) NR 1, also an Indiana corporation, jointly operates the same truckyard with ZBA and is likewise owned and operated by Zitkevicius. (Id. ¶¶ 6, 7.) Plaintiff and other truck drivers were paid on a per-mile basis and earned additional flat-rate payments for extra stops and layovers. (Id. ¶ 17.) Plaintiff alleges that she regularly worked eighty to ninety hours per week for ZBA and NR 1, drove a truck owned and insured by ZBA and NR 1, and reported to the same company dispatcher in Joliet, Illinois for both jobs. (Id. ¶ 30.) Defendants' dispatcher told Plaintiff where and when to drive and scheduled loads for her to haul to various locations around the country. (Id. ¶ 31.) Plaintiff had no discretion over which loads she would haul or where she would haul them. (Id. ¶ 32.) She alleges in her Amended Complaint that Defendants exercised “substantial control over Plaintiff and other company drivers, ” but nevertheless improperly classified Plaintiff and other company drivers as independent contractors. (Id. ¶ 29.)

It was Defendants' practice to make regular deductions from truck drivers' weekly paychecks. (Id. ¶ 20.) In addition to weekly deductions for insurance payments and “office fee[s], ” Defendants regularly deducted $250 per week, up to $2, 000 in total, to be held in “escrow.” (Id. ¶ 21.) ZBA and NR 1 informed Plaintiff and other drivers, at the beginning of their employment, that they would receive the escrow funds within 45 days of termination of their employment. (Id.) During the relevant times, Zitkevicius was aware of this deduction policy and had the authority to put an end to it. (Id. ¶ 20.) In approximately November 2018, someone stole the truck that Plaintiff was driving for Defendants. (Id. ¶ 18.) Although Plaintiff had “nothing to do with the theft, ” Zitkevicius informed her that NR 1 would be taking $1, 500 from her escrow deposit as a penalty. (Id.) NR 1 then began deducting more escrow money from Plaintiff's paychecks, deducting an additional $750 in December 2018 and January 2019. (Id. ¶ 19.)

In January 2019, after she suffered an on-the-job injury, Plaintiff voluntarily terminated her employment with NR 1. (Id. ¶ 23.) In her last work week-January 7, 2019 through January 13, 2019-she worked more than thirty hours. (Id. ¶ 24.) Upon Plaintiff's termination from NR 1, Defendants refused to issue her final weekly paycheck and refused to return any of her escrow wages. (Id.) Almost two months later, on March 8, 2019, Plaintiff sent Zitkevicius a text message saying, “Hey Nick this is Stefanee I was wondering when I would receive my last check and escrow back. I tried calling Karolina [sic] but go[t] no answer. In 2 days I will be gone 2 months.” (Id. ¶ 25.) Zitkevicius ignored the text message and refused to issue Plaintiff's final paycheck or reimburse her escrow money, although he had the authority to do so. (Id. ¶ 26.) Plaintiff has identified another terminated driver, Donald Brown, who also personally asked Zitkevicius multiple times to issue Brown's last paycheck and reimburse his escrow money and was turned down. (Id. ¶ 28.) According to the Amended Complaint, it is Defendants' regular practice to withhold drivers' escrow funds and final paychecks from employees upon termination of their employment with NR 1. (Id. ¶ 27.)

B. Additional evidence

In support of her request for conditional FLSA collective action, Plaintiff has submitted her own declaration and the declarations of Donald Brown, Eric Wainwright, and Robert Rodriguez- three other drivers who formerly worked for ZBA or NR 1 and contend that they never received either their escrow amounts or their last paycheck despite working more than thirty hours in their final weeks of work. (Ex. B to Cert. Mot. [19-2] (hereinafter “Dawkins Decl.”), ¶¶ 2, 8-9; Ex. C to Cert. Mot. [19-3] (hereinafter “Brown Decl.”), ¶¶ 2, 10; Ex. D to Cert. Mot. [19-4] (hereinafter “Wainwright Decl.”), ¶¶ 2, 7, 9; Ex. E to Cert. Mot. [19-5] (hereinafter “Rodriguez Decl.”), ¶¶ 2, 8-9.) All four declarants assert that NR 1 and/or ZBA owned the trucks they drove, that NR 1 and/or ZBA paid to insure the trucks, that NR 1 and/or ZBA paid to fuel and maintain the trucks, that the declarant was prohibited from driving the trucks for other companies, that the declarant was paid about 60 cents per mile, and that, while the companies deducted money from declarants' paychecks for “occupational accident insurance” and “office fees, ” none of the declarants invested any of their own money in the work they performed for either NR 1 or ZBA. (See generally Dawkins Decl.; Brown Decl.; Wainwright Decl.; Rodriguez Decl.)

There were some differences among the declarations: The declarants' lengths of employment for either company ranged from less than one month to about a year and a half (Wainwright Decl. ¶ 2; Rodriguez Decl. ¶ 2); Wainwright finished his employment with ZBA rather than with NR 1 (Wainwright Decl. ¶ 7); Brown claims that he was labeled as an Independent Contractor but treated as a company truck driver (Brown Decl. ¶ 3); and Rodriguez notes that he was ultimately paid half of his final week's wages after filing a complaint with the Texas Workforce Commission. (Rodriguez Decl. ¶ 10.) Dawkins and Wainwright, the only two declarants who worked for both ZBA and NR 1, asserted that ZBA and NR 1 are “one and the same” in that, although the companies have different names, they are operated and managed by the same individuals, operate out of the same office in Joliet, Illinois, and use the same dispatcher to tell Dawkins and Wainwright which loads to haul and where to deliver them. (Dawkins Decl. ¶ 3; Wainwright Decl. ¶ 3.) All four declarants noted their understanding that this lawsuit represented an effort to recover minimum wages and unlawful deductions taken from some dozens of other workers who worked for ZBA and/or NR 1. (Dawkins Decl. ¶ 10; Brown Decl. ¶ 11; Wainwright Decl. ¶ 10; Rodriguez Decl. ¶ 11.)

In response to these declarations, Defendants submitted the affidavit of Nerijus Zitkevicius. (Ex. A to Cert. Resp. [44-1] (hereinafter “Zitkevicius Aff.”).) Zitkevicius contended that NR 1 contracts independently with each of its drivers, resulting in varying compensation rates for each driver. (Id. ¶ 4.) Zitkevicius's declaration otherwise raises more questions than it answers. For example, Zitkevicius says it was “incorrect” that each declarant was paid approximately sixty cents per mile driven, but he did not reveal what any individual declarant was actually paid. Instead, he simply observes that “some drivers are paid more than sixty cents per mile, and other drivers are paid based on a percentage of the load.” (Id. ¶ 5.) It is not clear whether Zitkevicius contends that any of Plaintiff's declarants made inaccurate statements about their pay; he says only that not all NR 1 drivers are paid at a rate of sixty cents per mile. Zitkevicius does assert that drivers lease their own vehicles from NR 1 and control their own schedule, that NR 1 does not tell drivers how to perform their duties or drive their vehicles, that some drivers operate as incorporated business entities while others do not, that some drivers invest in additional equipment (i.e., dollies, navigation systems), and that some drivers work for part of the year or on an irregular basis. (Id. ¶¶ 6-7, 10-11, 13-14.)

Plaintiff rebutted the statements in Zitkevicius's affidavit by means of two additional documents. The first, a series of “screenshots” of the NR 1 website, reflects that NR 1 hires drivers into two separate categories: “Owner Operators” and “Company Drivers.” (Ex. F to Cert. Reply [47-1] (hereinafter “NR 1 Website”).) Under the “Owner Operator” job listing, the NR 1 website...

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