Dominguez v. Quigley's Irish Pub Inc.

Decision Date24 May 2011
Docket NumberNo. 09–cv–2583.,09–cv–2583.
Citation790 F.Supp.2d 803
PartiesMelody DOMINGUEZ, Stephanie Holdren, and all other Plaintiffs similarly situated known and unknown, Plaintiffs,v.QUIGLEY'S IRISH PUB, INC., Nancy Quigley, and Michele Michael, individually, Defendants.
CourtU.S. District Court — Northern District of Illinois


Alejandro Caffarelli, Bradley S. Manewith, Lorraine Teraldico Peeters, Caffarelli & Siegel LTD, Chicago, IL, for Plaintiffs.Jeffry J. Knuckles, Nyberg & Cassioppi, LLC, Naperville, IL, James Arthur McGurk, Law Offices of James A. McGurk, P.C., Chicago, IL, for Defendants.


JEFFREY COLE, United States Magistrate Judge.


Melody Dominguez and Stephanie Holdren filed this lawsuit against their former employer, Quigley's Irish Pub, Inc., and against Nancy Quigley and Michelle Michael, individually, alleging violations under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”), the Portal–to–Portal Act, 29 U.S.C. § 251, et seq., and the Illinois Minimum Wage Law, 820 Ill. Comp. Stat. 105/1 et seq. (“IMWL”). In their two-count Amended Complaint [76], the plaintiffs claim that the defendants failed to pay them minimum wages and overtime as required by law. Both parties have moved for summary judgment.1

A.Summary Judgment Standard Under Local Rule 56.1

For summary judgment purposes, the relevant background facts are derived from the parties' Local Rule 56.1 submissions, which assist the court in “organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side propose[s] to prove a disputed fact with admissible evidence.” Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir.2000). Indeed the Rule is ‘key’ to that task. F.T.C. v. Bay Area Business Council, Inc., 423 F.3d 627, 634 (7th Cir.2005).

The rule requires a party seeking summary judgment to include with its motion “a statement of material facts as to which the ... party contends there is no genuine issue and that entitle the ... party to a judgment as a matter of law.” Local Rule 56.1(a)(3); Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir.2008). Each paragraph must refer to the “affidavits, parts of the record, and other supporting materials” that substantiate the asserted facts. Local Rule 56.1(a)(3); Bay Area Business Council, Inc., 423 F.3d at 633. The party opposing summary judgment must then respond to the movant's statement of proposed material facts; that response must contain both “a response to each numbered paragraph in the moving party's statement,” Local Rule 56. 1(b)(3)(B), Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir.2009); Bay Area Business Council, Inc., 423 F.3d at 633, and a separate statement “consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment.” Local Rule 56.1(b)(3)(C); Ciomber, 527 F.3d at 643.

If the moving party fails to comply with the Rule, the motion can be denied without further consideration. Local Rule 56.1(a)(3); Smith v. Lamz, 321 F.3d 680, 682 n. 1 (7th Cir.2003). If the responding parting fails to comply, its additional facts may be ignored, and the properly supported facts asserted in the moving party's submission are deemed admitted. Local Rule 56.1(b)(3)(C); Montano v. City of Chicago, 535 F.3d 558, 569 (7th Cir.2008); Cracco, 559 F.3d at 632; Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir.2006). District courts are ‘entitled to expect strict compliance’ with Rule 56.1 and do not abuse their discretion when they opt to disregard facts presented in a manner that does follow the Rule's instructions. Cracco, 559 F.3d at 632; Ciomber, 527 F.3d at 643; Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir.2004). The court is not required to scour the record for evidence that supports a party's case if the party fails to point it out; that is the counsel's job. See Bay Area Business Council., 423 F.3d at 633.

In the instant case, the parties filed their respective motions for summary judgment on the same day. [Dkt. Nos. 59 and 61]. Thereafter, the plaintiffs responded to Defendants' Statement of Material Facts (“Defs. SOF”) [69] as required by Local Rule 56.1. The defendants, however, failed to respond to Plaintiffs' Statement of Material Facts (“Pls. SOF”). And, although the defendants properly submitted a statement of facts in support of their own Motion for Summary Judgment, that is not an adequate substitute for the specific, paragraph-by-paragraph response required by Local Rule 56.1. It is not the responsibility of the court to compare the defendants' Rule 56.1 Statement in support of their Motion for Summary Judgment to the plaintiffs' Rule 56.1 filing in support of their Motion for Summary Judgment. Indeed, that is the very sort of endeavor that Rule 56.1 is designed to eliminate.

As the court emphasized in Bay Area Business Council, even where a party files an affidavit in purported response to a Rule 56.1 filing, the affidavit will not suffice. A court is not obligated to conduct a paragraph-by-paragraph comparison to determine what is and what is not in dispute:

the defendants suggest the district court should have harked back to affidavits submitted with their answer to the FTC's amended complaint and their motion in opposition to the preliminary injunction. But local rules such as 56.1 exist precisely because the district court is not “obliged ... to scour the record looking for factual disputes.”

423 F.3d at 634 (citation omitted).2 Here, the defendants have not even made a pretense of filing a document that purportedly is responsive to a Rule 56.1 filing of the opposing party. The defendants have done nothing to respond to the plaintiffs' filing and thus, the plaintiffs' Statement of Facts is admitted.

B.The Material Facts In The Parties' Rule 56.1 Statements In Support Of Their Motions For Summary Judgment

Quigley's Irish Pub is a restaurant and bar located in Naperville, Illinois. (Pls. SOF ¶ 4); (Defs. SOF ¶ 5). The Pub is owned and operated by Nancy Quigley and Michelle Michael. (Pls. SOF ¶ 5). Among other things, Ms. Quigley and Ms. Michael have the authority to hire and fire employees, direct and supervise the work of employees, sign on the Pub's checking and payroll accounts, and make or participate in decisions regarding employee compensation and capital expenditures. (Pls. SOF ¶ 5).

Melody Dominguez is a former Pub employee. (Pls. SOF ¶ 1); (Defs. SOF ¶ 1). She worked at the Pub from August 2006 until February 15, 2009. (Pls. SOF ¶ 1). However, Ms. Dominguez did not work at the Pub for a period of approximately twenty weeks between November 10, 2006 and March 30, 2007. (Pls. SOF ¶ 1). Throughout her employment, Ms. Dominguez worked primarily as a server. (Pls. SOF ¶ 3). As a server, Ms. Dominguez was paid less than the applicable full minimum wage, and instead was paid the lower “tipped employee” rate. (Pls. SOF ¶ 3). Stephanie Holdren, also a former Pub employee, worked from March 2, 2009 until September 19, 2009, primarily as a server and was likewise paid the lower tipped employee rate. (Pls. SOF ¶¶ 2–3).

The defendants inform prospective employees of the minimum wage and server minimum wage to the extent that Ms. Dominguez and Ms. Holdren were told that they would be paid the server minimum wage during their interviews. (Plaintiffs' Objections and Responses to Defendants' Statement of Material Facts ((“Pls. Resp.”) at ¶ 11)). The Pub also gives its servers written notification of increases in the minimum wage. ( See Defs. SOF ¶ 12, 13; Defs. Ex. A—June 11, 2009 Memorandum to Employees; Defs. Ex. 83June 20, 2008 Memorandum to Employees). Although Ms. Dominguez denies that the defendants notified her of the Pub's intent to take a tip credit, it is unclear whether this blanket denial extends to whether she even received the Pub's written memo regarding the minimum wage. ( See Pls. Resp. at 5). The memorandum at issue in Ms. Dominguez's case is dated June 20, 2008 and reads: “Effective July 1, 2008, the State of Illinois will increase the minimum wage to $7.75 per hour. Tipped employees' minimum wage will increase to $4.65 per hour.” (Defs. Ex. 83). The memo further states that information was available posted on the office door and on the Federal and State Law posters located by the schedule board. (Defs. Ex. 83).

Ms. Holdren similarly denies that the Pub notified her of its intent to take a tip credit, but admits receiving a memo regarding a minimum wage increase dated June 11, 2009. (Pls. Resp. at 5; Defs. Ex. A). That memo states: “Effective July 1, 2009, the State of Illinois will increase the minimum wage to $8.00 per hour. Tipped employees minimum wage increases to $4.80 per hour.” (Defs. Ex. A) (Emphasis supplied). Although the defendants do not point it out specifically, this memo differs slightly from the June 20, 2008 memo in that it also states that [t]he difference between the minimum wage on regular earnings v. tipped employees is the tip credit (tips collected by employees).” (Defs. Ex. A) (parenthetical in original).

The Pub prominently displays state and federal wage and labor notices/posters. (Defs. SOF ¶ 15). Both Ms. Dominguez and Ms. Holdren acknowledge seeing the posters on display near the back of the Pub. ( See Defs. SOF ¶ 15; Defs. Ex. G—Dominguez Dep. at 43–45, “It was in plain view”; Defs. Ex. H—Holdren Dep. at 17–18).

The defendants pay their servers by the minute. (Pls. SOF ¶ 14; Pls. Ex. B—Michael Dep. at 35; Pls. Ex. C—Quigley Dep. at 33). The Pub uses a Point of Sales computer system to keep time records of hours worked by its servers. (Pls. SOF ¶ 8). Servers are required to clock-in and clock-out on the computer system using their individual employee number. (Pls. SOF ¶¶ 9, 10). Throughout their employment, Ms. Dominguez and Ms. Holdren would begin working immediately after clocking-in to the system. (Pls. SOF ¶¶ 9, 10). Then, when they...

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