Scott v. Ill. Bell Tel. Co.

• Decision Date: 10 March 2016
• Docket Number: 15 C 2805
• Court: U.S. District Court — Northern District of Illinois
• Parties: Charles Scott, Plaintiff, v. Illinois Bell Telephone Co. d/b/a AT&T Illinois, Defendant.

169 F.Supp.3d 845

Charles Scott, Plaintiff,

v.Illinois Bell Telephone Co. d/b/a AT&T Illinois, Defendant.

15 C 2805

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

Signed March 10, 2016

Mario E. Utreras, Utreras Law Offices, Inc., Chicago, IL, for Plaintiff.

Ellen E. Boshkoff, Baker & Daniels, Indianapolis, IN, George Alan Stohner, Gregory P. Abrams, Lindsey M. Hogan, Faegre Baker Daniels LLP, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

Gary Feinerman

, United States District Judge

Charles Scott and 140 other plaintiffs jointly sued their employer, Illinois Bell Telephone Company, alleging that it shortchanged them on overtime pay in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq .

Doc. 8 at ¶ 4; Doc. 19 at 3-4. Chief Judge Castillo severed the plaintiffs' claims under Federal Rule of Civil Procedure 21, and Scott's suit was assigned to the undersigned judge's calendar. Doc. 2; Doc. 8 at ¶ 4. Scott then filed an amended complaint, alleging that Illinois Bell, when calculating his wages, routinely ignored time that he spent working before and after his official shifts and during lunch breaks. Doc. 8 at ¶¶ 9-41. Illinois Bell has moved to dismiss parts of the amended complaint under Rule 12(b)(6). Doc. 18. The motion is granted; Scott's claims based on pre-shift work, and those based on certain lunch break and post-shift work, are dismissed with prejudice to the extent that work was performed before February 28, 2011.

Background

In deciding the motion to dismiss, the court assumes the truth of the amended complaint's factual allegations, though not its legal conclusions. See Lodholtz v. York Risk Servs. Grp., Inc. , 778 F.3d 635, 639 (7th Cir.2015)

. The court must consider “documents attached to the [amended] complaint, documents that are critical to the [amended] complaint and referred to in it, and information that is subject to proper judicial notice,” along with additional facts set forth in Scott's brief opposing dismissal, so long as those facts “are consistent with the pleadings.” Geinosky v. City of Chicago , 675 F.3d 743, 745 n. 1 (7th Cir.2012) ; see also

Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw. Ind. , 786 F.3d 510, 528 n. 8 (7th Cir.2015). The following facts are set forth as favorably to Scott as those materials allow. See

Meade v. Moraine Valley Cmty. Coll. , 770 F.3d 680, 682 (7th Cir.2014).

From at least July 27, 2008, Scott worked for Illinois Bell as a Cable Splicer. Doc. 8 at ¶¶ 6, 9. Scott's workweek officially lasted forty hours, but in practice Illinois Bell required him to perform work-related tasks before and after his official shift and during his lunch break. Id. at ¶¶ 36, 38-39. Specifically, Scott had to show up before his shift began to stock and fuel his truck and to review blueprints for the day's jobs, id. at ¶ 45; he often had to work through lunch to meet his supervisor's efficiency expectations, id. at ¶¶ 23, 47; and he typically spent time after his shift cleaning out and restocking his truck, removing generators and tanks from his truck, and occasionally completing timesheets, id. at ¶ 46. Illinois Bell nonetheless paid Scott as if he had worked only during his assigned eight-hour shift. Id. at ¶¶ 38, 40.

On January 17, 2011, other Illinois Bell employees sued Illinois Bell under the caption, Blakes v. AT&T Corp. , 11 C 336 (N.D. Ill.), alleging that the company violated the FLSA by requiring Cable Splicers to guard open manholes during their lunch breaks, to travel between job sites during their lunch breaks, and to complete timesheets after their shifts, all without pay. Doc. 8 at ¶¶ 2-3; Amended Complaint, Blakes , 11 C 336 (Doc. 11). Section 16(b) of the FLSA, 29 U.S.C. § 216(b)

, allows workers to bring claims as “collective actions,” which operate much like class actions under Rule 23 except that “plaintiffs who wish to be included in a collective action must affirmatively opt-in to the suit by filing a written consent with the court, while the typical class action includes all potential plaintiffs that meet the class definition and do not opt-out.” Alvarez v. City of Chicago , 605 F.3d 445, 448 (7th Cir.2010). Magistrate Judge Kim, who was hearing Blakes , conditionally certified three claims for collective treatment under § 216(b) : (1) claims based on time spent guarding open manholes during lunch breaks; (2) claims based on time spent travelling between job sites during lunch breaks; and (3) claims based on time spent completing timesheets after shifts had ended. Blakes v. Ill. Bell Tel. Co. , 2011 WL 2446598, at *3–4 (N.D.Ill. June 15, 2011). Those three claims will be called the “Blakes claims.” Scott opted into the Blakes collective action on July 27, 2011. Doc. 8 at ¶ 3.

On December 17, 2013, Magistrate Judge Kim decertified the Blakes collective action with respect to both lunch break claims, but not the post-shift claim, and stayed his ruling until February 28, 2014. Doc. 19 at 3; see Blakes v. Ill. Bell Tel. Co. , 2013 WL 6662831, at *21 (N.D.Ill. Dec. 17, 2013)

. On the last day of the stay, rather than seeking leave to file an amended complaint in Blakes joining themselves as plaintiffs under Rule 20(a)(1), Scott and 140 others who had opted into Blakes jointly filed a new complaint against Illinois Bell in Tinoco v. Illinois Bell Telephone Co. , 14 C 1456 (N.D. Ill.), as co-plaintiffs rather than as a collective action. Doc. 8 at ¶ 4; Doc. 19 at 3-4. Tinoco was assigned to Chief Judge Castillo, and the court issued summons on May 1, 2014. See Docket Sheet, Tinoco , 14 C 1456.

Chief Judge Castillo ultimately held that a non-collective action suit joining the individual FLSA claims of 141 different plaintiffs would be too unruly, so he severed the plaintiffs' claims, which the Clerk then distributed to judges throughout the District. See Adkins v. Ill. Bell. Tel. Co. , 2015 WL 1508496, at *9–10 (N.D.Ill. Mar. 24, 2015)

. Scott's present suit, one of the severed Tinoco actions, was assigned to the undersigned judge's calendar. Doc. 2.

Scott filed an amended complaint setting out his personal allegations against Illinois Bell on July 30, 2015. Doc. 8. He seeks to recover for all of his unpaid work dating back to July 27, 2008—exactly three years before he opted into the Blakes collective action. Id. at ¶ 3. His suit includes not only the Blakes claims—which, as noted, relate to guarding job sites and travelling during lunch, and completing timesheets after his shift—but also claims for unpaid time spent preparing for the day's jobs before his shift, working to meet Illinois Bell's efficiency expectations during lunch, and performing various tasks after his shift. Id. at ¶¶ 45-47. Those other claims will be called the “non-Blakes claims.”

Discussion

Illinois Bell has moved to dismiss Scott's non-Blakes claims, insofar as they pertain to work he performed before February 28, 2011, on the ground that they are barred by the FLSA's three-year statute of limitations for willful violations, 29 U.S.C. § 255(a)

. Doc. 19 at 5. Illinois Bell concedes that Scott's amended complaint relates back to the original complaint in Tinoco filed on February 28, 2014, and therefore that all claims based on work that Scott performed on or after February 28, 2011 are at least plausibly timely. Doc. 19 at 5. Illinois Bell also concedes for purposes of its motion that Scott's Blakes claims are timely to the extent they are based on work performed on or after July 27, 2008, which is three years before he opted into the Blakes collective action on July 27, 2011. Id. at 5–6. But Illinois Bell contends that Scott's non-Blakes claims are time-barred to the extent they are based on work performed before February 28, 2011. Ibid. Scott counters that, under Rule 15(c)(1)(B), his amended complaint relates back to the day he opted into Blakes , July 27, 2011, and therefore that all of his claims, including his non-Blakes claims, are timely insofar as they relate to work performed after July 27, 2008. Doc. 22 at 3-4.

Judges in this District handling severed Tinoco suits have split over whether non-Blakes claims relate back under Rule 15(c)(1)(B) to the date the plaintiff opted into Blakes . Some decisions hold that Rule 15(c)(1)(B) applies. See , e.g. , Pavur v. Ill. Bell Tel. Co. , 2016 WL 278886, at *3 (N.D.Ill. Jan. 21, 2016)

; McComb v. Ill. Bell Tel. Co. , 2016 WL 245900, at *2 (N.D.Ill. Jan. 20, 2016) ; McNally v. Ill. Bell Tel. Co. , 2016 WL 212942, at *3–4 (N.D.Ill. Jan. 19, 2016) ; Miller v. Ill. Bell. Tel. Co. , 157 F.Supp.3d 749, 754-56, 2016 WL 212940, at *3–4 (N.D.Ill. Jan. 19, 2016) ; Brown v. Ill. Bell Tel. Co. , 2016 WL 212939, at *3 (N.D.Ill. Jan. 19, 2016) ; Hodges v. Ill. Bell Tel. Co. , 2015 WL 6407757, at *3 (N.D.Ill. Oct. 21, 2015) ; Ballard v. Ill. Bell Tel. Co. , 2015 WL 6407574, at *3 (N.D.Ill. Oct. 21, 2015) (“Because this is the same lawsuit stemming from the Blakes Action, the Court turns to the relation back doctrine under Rule 15(c)(1)(B).”). Other decisions hold that it does not matter whether Rule 15(c)(1)(B) applies, because Rule 15(c)(1)(B) is identical in scope to a tolling doctrine (American Pipe, of which more later) that does apply. See , e.g. , Niemiec v. Ill. Bell Tel. Co. , 2016 WL 521060, at *2–3 (N.D.Ill. Feb. 10, 2016) ; Tennessen v. Ill. Bell Tel. Co. , 2016 WL 521046, at *2–3 (N.D.Ill. Feb. 10, 2016) ; Jones v. Ill. Bell Tel. Co. , 2015 WL 9268418, at *2–3 (N.D.Ill. Dec. 21, 2015) ; Alphonse v. Ill. Bell Tel. Co. , 2015 WL 7251953, at *1 (N.D.Ill. Nov. 17, 2015) ; Wiggins v. Ill. Bell Tel. Co. , 2015 WL 6408122, at *4–6 (N.D.Ill. Oct. 22, 2015). Still other decisions suggest that Rule 15(c) does not apply. See

Passi v. Ill. Bell Tel. Co. , 2016 WL 193401, at *4 (N.D.Ill. Jan. 15, 2016) ; Malkowski v. Ill. Bell Tel. Co. , 2016 WL 193399, at *4 (N.D.Ill. Jan. 15, 2016) ; Bowen v. Ill. Bell Tel. Co. , 2016 WL 164415, at *4 (N.D.Ill. Jan. 14, 2016) (“The court also notes that even if the...