Molina v. First Line Solutions LLC, 05 C 5818.

• Citation: 566 F.Supp.2d 770
• Decision Date: 28 June 2007
• Docket Number: No. 05 C 5818.,05 C 5818.
• Parties: Jose MOLINA, Stephen O. Spencer, and Robert M. Bliznick, on behalf of themselves and all other similarly situated plaintiffs known and unknown, Plaintiffs, v. FIRST LINE SOLUTIONS LLC, Defendant.
• Court: U.S. District Court — Northern District of Illinois

566 F.Supp.2d 770

Jose MOLINA, Stephen O. Spencer, and Robert M. Bliznick, on behalf of themselves and all other similarly situated plaintiffs known and unknown, Plaintiffs, v. FIRST LINE SOLUTIONS LLC, Defendant.

No. 05 C 5818.

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

June 28, 2007.

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John William Billhorn, Billhorn Law Firm, Chicago, IL, for Plaintiffs.

Britt J. Rossiter, Mark D. Katz, Ulmer & Berne LLP, Cleveland, OH, Kenneth Frederick Berg, Peter Robert Sonderby, Ulmer & Berne LLP, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

WILLIAM T. HART, District Judge.

Plaintiffs Jose Molina, Stephen Spencer, and Robert Bliznick are current or former employees of defendant First Line Solutions LLC (n/k/a First Level Technology, LLC) ("FLT").¹ FLT installs, services, and repairs point-of-sale, ATM, and imaging equipment. Plaintiffs worked as customer engineers ("CE"), the FLT employees that installed, serviced, and repaired the equipment. Plaintiffs contend they were improperly denied pay, often including overtime pay, for certain periods that defendant did not recognize as worktime. This included work allegedly performed before and after their start and end times and during breaks. Plaintiffs also contend they are entitled to additional compensation for when they were on call. Plaintiffs claim willful violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq.; the Illinois Minimum Wage Law ("IMWL"), 820 ILCS 105; and the Illinois Wage Payment and Collection Act ("IWCA"), 820 ILCS 115. The FLSA and IMWL claims are based on violations of statutory provisions, while the IWPCA claim is based on an alleged contractual obligation to pay overtime.

Defendant has moved for summary judgment dismissing the FLSA and IMWL claims to the extent they are based on work performed prior to October 1, 2005, the date defendant contends 49 U.S.C. § 13102 was amended. Defendant contends that, prior to that date, CEs were exempt from the FLSA based on 29 U.S.C. § 213(b)(1), which generally exempts employees covered by the Motor Carrier Act. Defendant contends a similar exclusion applies to the IMWL. Defendant also contends undisputed facts support that on-call time is not compensable. Plaintiffs move to amend their complaint to add a promissory estoppel claim. Plaintiffs also move for permission to send notice of an opt-in collective action regarding the FLSA claims. See 29 U.S.C. § 216(b). As to the state law IMWL and IWPCA claims (and proposed promissory estoppel claim), plaintiffs move for certification of an opt-out class action pursuant to Fed.R.Civ.P. 23(b)(3). The summary judgment motion will be considered first.

On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Scott v. Harris, ___ U.S. ___, ___, ___, 127 S.Ct. 1769, 1774, 1776, 167 L.Ed.2d 686 (2007); Scaife v. Cook County, 446 F.3d 735, 738-39 (7th Cir.2006). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Creditor's Committee of Jumer's Castle Lodge, Inc. v. Jumer, 472 F.3d 943, 946 (7th Cir.2007); Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir.2001). The nonmovant, however, must make a showing sufficient to establish any essential element for which he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Jumer, 472 F.3d at 946; Cody v. Sheahan, 467 F.3d 1057, 1061 (7th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 2947, 168 L.Ed.2d 272 (2007). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

Here, the parties agree as to most of the facts that are to be taken as true for purposes of summary judgment. Plaintiffs do not disagree with any of the facts contained in defendant's Local Rule 56.1(a)(3) statement. Defendant only disagrees with a few of the statements contained in plaintiffs' Local Rule 56.1(b)(3)(C) statement of additional facts. The disagreements and related evidence need only be considered to the extent the facts involved are material.

For purposes of ruling on defendant's motion for summary judgment, the following facts are taken as true. FLT is in the business of installing, servicing, and repairing point-of-sale, ATM, and imaging equipment at customer sites. The three named plaintiffs have worked for FLT as CEs and Spencer has also been a lead technician. Spencer and Molina have not worked for FLT since, respectively, August 13 and August 22, 2005. All three worked exclusively or primarily at customer locations in Illinois. Bliznick has occasionally worked at customer sites in Indiana. On two occasions Molina assisted the CEs in Seattle, Washington and Grand Rapids, Michigan.

CEs are the employees who do the installing, servicing, and repairing of equipment. This frequently involves installing or replacing parts for the equipment. CEs maintain an inventory of commonly used parts called a personal parts kit or PPK. Use of a part from the kit is reported to FLT's parts distribution center in Georgia. Replacement parts for the kit are shipped from the distribution center to an express delivery center in the Chicago area (usually Federal Express, DHL Express, or UPS) where the CE picks up the parts. A CE commonly picks up replacement parts for his or her PPK at least once a week.

When a CE needs a part that is not in the PPK, the CE places an order with the Georgia distribution center. The order identifies the particular customer and the location of the customer's equipment. The distribution center first attempts to locate a part at a facility or vehicle near the CE. If there is no part in the vicinity, the distribution center special orders the part and has it shipped to a place where the CE picks it up and then delivers it to the customer location and installs it. Such parts are generally shipped via air delivery from a location outside Illinois. Sometimes the shipment is sent directly to the CE's residence or another location selected by the CE, but usually the shipment is to a local terminal of the shipper (usually Federal Express, Airborne Express, or UPS). Most CEs pick up such parts at terminal facilities at least once every other week.

Although not included in defendant's statement of facts, plaintiffs do not dispute the representation in defendant's brief that CEs use motor vehicles when going to shipping terminals and customer locations.

Plaintiffs do not dispute that most of the parts taken to customer locations are owned by FLT and that ownership does not transfer to the customer until completion of the installation. As to parts owned by third party suppliers, it is undisputed that agreements are in place under which the suppliers authorize CEs to take temporary and exclusive possession of parts for the purpose of delivering those parts to customer sites for installation.

Periodically, CEs are required to be on call. Teams of CEs generally take weekly turns of being on call. Teams can include as little as three or four CEs, meaning a CE will be on call every third or fourth week. CEs may trade on call time. While on call, a CE must be available to respond to a customer by telephone within 15 minutes and be at the customer site within two hours or a longer time agreed upon by the customer. CEs are limited to no more than 40 weeks of on call time per year.

While on call, the CE has to be in an area that has Blackberry and cell phone service and that allows the CE to get to any customer site in his or her territory within two hours. This still allows CEs to visit friends and relatives in such areas, shop, go to restaurants, do household activities, and perform various other activities while on call.

CEs receive availability pay while on call and hourly pay (including applicable overtime) for calls actually made. Records are provided showing how many on call days and actual calls each plaintiff had during the approximately 19-month period from September 2, 2002 to April 11, 2004. Bliznick was on call 139 days and had calls on 25 (17.99%) of those days. Molina was on call 150 days and had calls on 16 (10.67%) of those days. Spencer was on call 188 days and had calls on 45 (23.94%) of those days.

Plaintiffs submit sufficient evidence supporting the following additional facts, which must be taken as true for purposes of defendant's summary judgment motion. Uniform job descriptions and compensation decisions regarding CEs were made at a national level for FLT. When CEs accepted a job offer, the offer included a particular CE job description and a particular level of compensation. The front page of the job description included a summary listing of the job title, department, and person to whom the employee would report. This summary listing also included the following line: "FLSA (Overtime) Status: Non-Exempt."

Applicants accepting a job offer were required to sign a copy of the job description acknowledging that they had received it. Immediately above the signature line was the following disclaimer. "This job description is not intended to be all-inclusive, and may be altered and/or amended at any time by management. This job description does not constitute a contract of employment, either expressed or implied, nor does it specify employment for a given period of time." For purposes of summary judgment, it is accepted as true that FLT intended that the applicant would rely upon the information in the job description when considering the job offer.

CEs were promised that they would be paid overtime. Also, the Human Resources Department considered the CE position as not exempt from FLSA overtime provisions. The Human Resources Department was unaware of...