Singer v. Reg'l Transp. Auth. & Pace Suburban Bus Serv.

• Decision Date: 17 August 2018
• Docket Number: 18 C 199
• Citation: 338 F.Supp.3d 791
• Parties: Richard SINGER, individually and on behalf of all others similarly situated, Plaintiff, v. REGIONAL TRANSPORTATION AUTHORITY and Pace Suburban Bus Service, Defendants.
• Court: U.S. District Court — Northern District of Illinois

338 F.Supp.3d 791

Richard SINGER, individually and on behalf of all others similarly situated, Plaintiff,

v.REGIONAL TRANSPORTATION AUTHORITY and Pace Suburban Bus Service, Defendants.

18 C 199

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

Signed August 17, 2018

Stephen Arthur Chareas, Attorney at Law, Mt. Prospect, IL, Scott C. Polman, Attorney at Law, Niles, IL, for Plaintiff.

Darcy L. Proctor, Justin DeLuca, Lucy B. Bednarek, Margaret Kostopulos, Ancel, Glink, Diamond, Bush, Dicianni & Krafthefer, P.C., Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Gary Feinerman, United States District Judge

Richard Singer brings this putative class and collective action against Pace Suburban Bus Service and Regional Transportation Authority ("RTA"), alleging wage-and-hour claims under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. , the Illinois Minimum Wage Law ("IMWL"), 820 ILCS 105/1 et seq. , and the Illinois Wage Payment and Collection Act ("IWPCA"), 820 ILCS 115/1 et seq. Doc. 2. Defendants move under Civil Rule 12(b)(6) to dismiss the complaint. Doc. 21. The motion is granted in part and denied in part, though Singer will be given a chance to replead.

Background

In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative complaint's well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider "documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice," along with additional facts set forth in Singer's brief opposing dismissal, so long as those additional facts "are consistent with the pleadings." Phillips v. Prudential Ins. Co. of Am. , 714 F.3d 1017, 1019-20 (7th Cir. 2013). The facts are set forth as favorably to Singer as those materials allow. See Pierce v. Zoetis, Inc. , 818 F.3d 274, 277 (7th Cir. 2016). In setting forth those facts at the pleading stage, the court does not vouch for their accuracy. See Jay E. Hayden Found. v. First Neighbor Bank, N.A. , 610 F.3d 382, 384 (7th Cir. 2010).

The RTA oversees the three primary public transit systems in the Chicago metropolitan area: the Chicago Transit Authority; Metra; and Pace, which operates a bus line system serving Chicago's suburbs. Doc. 2 at ¶¶ 7-9. Singer has worked as a Pace bus driver for some five years. Id. at ¶ 5. On average, Singer worked at least eight hours per day, at least five days per week, at a wage of $21.57 per hour. Id. at ¶¶ 45, 69, 77.

Singer alleges that Pace maintains a time-shaving policy. Id. at ¶¶ 46-48. Pace set the schedule for every bus run and, if the actual run time exceeded the planned run time, Pace required drivers to fill out a "Pay Exception Slip" or "pink slip" giving the reasons for the delay. Id. at ¶ 46; Doc. 2-2. Pace instructed drivers not to list "unrealistic schedule" as a reason, and instead to attribute delays to "traffic." Id. at ¶ 47. Pink slips were then forwarded to a supervisor responsible for approving the excess time. Id. at ¶ 48.

Using his own records, Singer calculated the "shortages of actual pay" that should have been reflected in his paychecks. Id. at ¶¶ 49, 60-61. He alleges underpayment in the amount of approximately $1,000. Id. at ¶¶ 49, 58-62. Singer raised the underpayment issue with Pace's payroll personnel and management several times, including once in early 2017 after noticing a one-hour shortage on a paycheck. Id. at ¶¶ 63-64. Pace management refused his request to see Pace's copies of his time sheets. Ibid. Singer then discussed the issue with two union stewards, who felt that it would be futile to pursue a grievance. Doc. 25 at 9.

Discussion

I. FLSA and IMWL Claims

The FLSA requires employers to pay employees "not less than ... $7.25 an hour," 29 U.S.C. § 206(a)(1), and also to pay overtime at a rate "not less than one and one-half times" their regular wage, 29 U.S.C. § 207(a)(1). See DeKeyser v. Thyssenkrupp Waupaca, Inc. , 735 F.3d 568, 570 (7th Cir. 2013) ("The FLSA's two core provisions—the minimum wage provision and the overtime provision—require that employees receive a minimum wage for each hour that they are ‘employ[ed]’ as well as a premium wage (one and one-half times the regular rate of pay) for each hour they are ‘employ[ed]’ beyond forty hours in one work week.") (brackets in original) (quoting 29 U.S.C. §§ 206(a), 207(a) ). Singer alleges violations of both the minimum wage and overtime provisions.

As Singer all but conceded at the motion hearing, Doc. 30, his § 206(a)(1) minimum wage claim is not plausible and thus does not survive Rule 12(b)(6). " ‘A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ " Indep. Trust Corp. v. Stewart Info. Servs. Corp. , 665 F.3d 930, 934-35 (7th Cir. 2012) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). As noted, the complaint alleges that Singer worked at least eight hours per day, at least five days per week, at a wage of $21.57 per hour, and that he was underpaid by approximately $1,000 over the relevant time frame. Doc. 2 at ¶¶ 45, 49. Those allegations do not permit the reasonable inference that his average hourly wage ever fell below the statutory minimum of $7.25. Assuming, favorably to Singer, that the underpayment occurred in the two-year limitations period governing non-willful FLSA claims, see 29 U.S.C. § 255(a), Singer alleges a weekly underpayment of approximately $10, or a daily underpayment of approximately $2, nowhere near the amount necessary to bring his average hourly wage below the federal minimum. See Hirst v. SkyWest, Inc. , 283 F.Supp.3d 684, 691 (N.D. Ill. 2017) (requiring a FLSA plaintiff to "plausibly allege at least one workweek for which the compensation ... received, divided by [her] total compensable time, failed to meet the FLSA minimum wage of $7.25 per hour") (citing cases); Hughes v. Scarlett's G.P., Inc. , 2016 WL 4179153, at *3 (N.D. Ill. Aug. 8, 2016) (same).

In contrast, Singer's § 207(a)(1) overtime claim survives dismissal. "Under the FLSA, employees are entitled to overtime pay for any hours worked over forty hours per week ...." Blanchar v. Standard Ins. Co. , 736 F.3d 753, 756 (7th Cir. 2013) ; see also Lucero v. Leona's Pizzeria, Inc. , 2015 WL 191176, at *2 (N.D. Ill. Jan. 13, 2015) ("To state a viable FLSA overtime claim ... a plaintiff must sufficiently allege forty hours of work in a given workweek as well as some uncompensated time in excess of forty hours.") (alterations and internal quotation marks omitted). Singer alleges that he was employed for "workweeks longer than 40 hours" and was not compensated "for all of the time that [he] worked, including time in excess of 40 hours per week, at the required rate of at least 1.5 times [his] regular rate of pay." Doc. 2 at ¶¶ 69, 77. Accepting Singer's allegations as true, it is plausible that Pace's time-shaving policy led to his being undercompensated for working more than forty hours a week during at least some weeks in the relevant time frame.

Pressing the opposite result, Defendants contend that Singer's allegations are insufficiently developed to satisfy Rule 8(a). Doc. 21 at 4-5. In support, Defendants cite Hughes v. Scarlett's G.P., Inc. , 2016 WL 454348, at *5 (N.D.Ill. Feb. 5, 2016), where the plaintiffs "offer[ed] no factual detail regarding overtime hours worked, monies earned, or monies purportedly due," and Cho v. GCR Corp. , 2013 WL 675066, at *2 (N.D. Ill. Feb. 22, 2013), where the plaintiffs "[did] not allege any supporting facts—such as when they worked for Defendants, what they did for Defendants, how many hours they worked, or what, if anything, they were paid." Singer's allegations are substantially more developed than those dismissed in Hughes and Cho , as his complaint identifies when he first started working for Pace, Doc. 2 at ¶ 5; the job he held, ibid. ; the hours he worked, id. at ¶¶ 69, 77; what he was paid, id. at ¶ 45; and what he is owed, id. at ¶ 49. Those allegations are sufficient to survive dismissal under Rule 12(b)(6).

Defendants next contend that the allegedly unpaid overtime work is "insignificant or de minimis. " Doc. 21 at 6. In support, Defendants assert that Singer alleges that he worked on average only six minutes of uncompensated overtime per day; they reach that figure by taking the approximate total alleged underpayment ($1,000), dividing it by his hourly rate ($21.57), and then dividing that by the maximum number of days Singer could have worked in the two-year limitations period, assuming twenty work days per month. Id. at 7 & n.2.

"The de minimis doctrine allows employers to disregard otherwise compensable work when only a few seconds or minutes of work beyond the scheduled working hours are in dispute." Kellar v. Summit Seating Inc. , 664 F.3d 169, 176 (7th Cir. 2011). The doctrine's animating purpose is " ‘the practical administrative difficulty of recording small amounts of time for payroll purposes.’ " Ibid. (quoting Lindow v. United States , 738 F.2d 1057, 1062 (9th Cir. 1984) ); see also 29 C.F.R. § 785.47 ("In recording working time under the [FLSA], insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes , may be disregarded. The courts have held that such trifles are de minimis. ") (emphasis added). Thus, "[w]hen evaluating whether work performed by an employee is de minimis , courts typically consider the amount of time spent on the extra work, the practical administrative difficulties of recording additional time, the regularity with which the additional work is performed, and the aggregate amount of compensable time." Kellar ...