Skelton v. American Intercontinental University

• Decision Date: 19 August 2005
• Docket Number: No. 03 C 9009.,03 C 9009.
• Citation: 382 F.Supp.2d 1068
• Parties: Michael SKELTON and Diane Abbinanti, Plaintiffs, v. AMERICAN INTERCONTINENTAL UNIVERSITY ONLINE, Defendant.
• Court: U.S. District Court — Northern District of Illinois

382 F.Supp.2d 1068

Michael SKELTON and Diane Abbinanti, Plaintiffs, v. AMERICAN INTERCONTINENTAL UNIVERSITY ONLINE, Defendant.

No. 03 C 9009.

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

August 19, 2005.

COPYRIGHT MATERIAL OMITTED

Robin B. Potter, Robert Glenn Reiter, Jr., Robin Potter & Associates P.C., Chicago, IL, Martin A. Dolan, Dolan & Shannon, P.C., Chicago, IL, for Plaintiffs.

Sheldon Toby Zenner, James M. Gecker, Jeffrey L. Rudd, Joni S. Jacobsen, Kyle Anne Petersen, Stuart Jay Chanen, Katten Muchin Zavis Rosenman, Michelle Therese McGuinness, Katten Muchin Rosenman LLP, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

KENNELLY, District Judge.

Plaintiffs Michael Skelton and Diane Abbinanti have sued their former employer, American Intercontinental Online University, alleging violations of the Fair Labor Standards Act, 29 U.S.C. § 216(b), the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq. and the Illinois Wage Payment and Collection Act, 820 ILCS 115/1 et seq. for failure to pay overtime compensation and retaliatory discharge. AIUO has filed for summary judgment.

For the reasons stated below, the Court denies AIUO's motions for summary judgment as to plaintiffs' claims under the FLSA and the overtime claim under the IMWL but grants AIUO's motions as to plaintiffs' retaliation claims under the IMWL and IWPCA and as to their claim under the IWPCA.

Facts

AIUO is a for-profit college offering associate's, bachelor's, and master's degrees through online courses. Michael Skelton worked for AIUO in Hoffman Estates, Illinois from February 10, 2003 through July 17, 2003, when he was terminated. Diane Abbinanti worked in the same AIUO office from August through October 2002, when she left voluntarily, and then again from January 10, 2003 until she was terminated on July 22, 2003. Plaintiffs worked in the position of "admissions advisor." As admissions advisors, plaintiffs called prospective students and sought to enroll them in one of the school's online programs. Plaintiffs were responsible for recording on time sheets the hours they worked. Hours worked beyond forty per week were considered overtime work and were compensated at a rate of time and a half.

AIUO grouped admissions advisors into teams that were supervised by a director of admissions. Plaintiffs were part of a team supervised by national director of admissions, Mark Savasta, and director of admissions, Oma Rassul. Plaintiffs allege that Savasta and Rassul, along with other AIUO managers, instructed them to work beyond forty hours per week but prohibited them from recording the overtime work on their time sheets, which resulted in plaintiffs not being compensated for the work.

On July 14, 2003, plaintiffs, along with fellow admissions advisors Gary Severs and Paul Vander Vennet, met with Judy Clinton, the head of human resources for AIUO. They complained to Clinton that they were being instructed to work overtime but were prohibited from recording their overtime hours. Skelton was fired from AIUO three days after the meeting with Clinton, and Abbinanti was fired eight days after the meeting.

Discussion

Summary judgment is proper only if, after considering all of the evidence and drawing all reasonable inferences in favor of the non-moving party, the Court determines that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists when a reasonable finder of fact could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

1. Overtime compensation claims

A. FLSA

As admissions advisors at AIUO, Skelton and Abbinanti were "employees" under the FLSA and thus were entitled to the benefits and protections of the Act, including the FLSA's guarantee of overtime compensation for overtime worked. 29 U.S.C. § 213; Kennedy v. Commonwealth Edison Co., 410 F.3d 365, 367 (7th Cir.2005).

AIUO makes several arguments in support of its motions for summary judgment on plaintiffs' claims for failure to pay overtime wages. First, AIUO asserts, and plaintiffs do not dispute, that plaintiffs were paid for all overtime hours actually recorded on their time sheets. Because company policy made employees responsible for recording their time, AIUO contends that plaintiffs must bear the loss of any failure on their part to record their time.

AIUO's argument is unpersuasive. The FLSA makes clear that employers, not employees, bear the ultimate responsibility for ensuring that employee time sheets are an accurate record of all hours worked by employees. 29 U.S.C. § 211(c); Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). Thus, if plaintiffs have evidence sufficient to support a finding that they were told not to record all their overtime, AIUO cannot hide behind a policy of having employees keep their own time to avoid compensating the employees for all overtime hours worked, including unrecorded hours. See Walton v. United Consumers Club, Inc., 786 F.2d 303, 314-15 (7th Cir.1986) (because the FLSA requires "every employer to keep an accurate record of hours worked by each employee" the employer, rather than the employees, must suffer the consequences of inaccurate time sheets); see also Ladegaard v. Hard Rock Concrete Cutters, Inc., No. 00 C 5755, 2004 WL 1882449, *4 (N.D.Ill. Aug. 18, 2004) (employer cannot "escape its responsibility to pay employees for all time worked by relying solely on the hours reported on employees' time sheets").

AIUO argues that plaintiffs have failed to present evidence showing that they actually worked unreported overtime hours. Plaintiffs bear the burden of proving they performed overtime work for which they were not compensated. Mt. Clemens, 328 U.S. at 686-87, 66 S.Ct. 1187. This burden, however, is not an unsurmountable one. See id. ("The remedial nature of this statute [FLSA] and great public policy which it embodies ... militate against making that burden an impossible hurdle for employees."). Plaintiffs have provided the Court with sufficient evidence to create a triable issue of fact as to whether they performed overtime work which was not reported on time sheets and was therefore uncompensated. Plaintiffs have testified that they were repeatedly instructed to record on their time sheets only forty hours of work per week, despite the number of hours actually worked, and that if they did report overtime, they were required to change their time sheets before they were submitted. Skelton Dep. at 173-77 (time sheets that reflected more than forty hours of work per week were returned to the admission advisors to be changed to reflect only forty hours), 284-85 (instructed by supervisors to under-report time worked); Abbinanti Dep. at 128-29 (when she reported over forty hours on her time sheets, they were sent back for her to change to reflect only forty hours), 139-40 (under-reported overtime upon instruction from supervisors).

AIUO argues that plaintiffs' deposition testimony is merely "self-serving" and insufficient to defeat summary judgment, particularly in light of the fact that plaintiffs admit that they did not personally keep any documentary evidence reflecting the hours they worked but did not report. Skelton Dep. at 165-66, 203-05; Abbinanti Dep. at 41-43, 55-56, 71, 186, 203. But even if the fact that testimony is self-serving were a proper basis to exclude it or deem it insufficient — a doubtful proposition at best — plaintiffs have also submitted deposition testimony from more than ten other admissions advisors that corroborates their allegations. See, e.g., Harrison Dep. at 65-66 (Savasta told her "he would not pay us [admissions advisors on his team] for the overtime" worked); Langer Dep. at 90 (she did not report overtime hours, though she frequently worked over forty hours per week), 94-95 (Steve Fireng, president of AIUO, told her she should work overtime in order to meet enrollment goal, but she would not get paid for it); Myers Dep. at 56-57, 97-98 (instructed by manager to report forty hours per week of work, regardless of overtime hours worked); Vander Vennet Dep. at 19-21 (supervisor Mark Oleferchik told him to delete overtime from time sheet because he had failed to enroll enough students the previous week); Skarpac Decl. ¶¶ 12-15 (instructed by supervisors to work overtime but not to report it, therefore, overtime work was frequently not recorded on time sheets); Skarpac Dep. at 48-51 (overtime pay was only for high achievers, regardless of hours worked); Shain Dep. at 58-65 (did not record all of his overtime because Savasta informed him that there was a restriction on the number of overtime hours he could record on his time sheet, and Savasta would require him to alter his time sheet if he recorded too much time); Myers Decl. at ¶¶ 5-6 (supervisors instructed him not to record more than forty hours on his time sheets, despite the fact that he regularly worked fifteen hours of overtime per week for which he was not compensated); Owusu Decl. at ¶ 5 (supervisors told him many times that it was AIUO's policy and practice not to pay admissions advisors for all overtime worked; consistent with that policy, Owusu was not paid for all overtime worked); Williamsbey Dep. at 73-75 (instructed by Savasta to change time sheets on three occasions to reflect fewer hours, the accurate time sheets were thrown out); Barrett Dep. at 36 (told that time sheets should always total forty hours, regardless of hours worked), 52 (required to change a time sheet to only reflect forty hours and was therefore uncompensated for overtime work). After considering the testimony of plaintiffs and their co-workers, a reasonable finder of fact could conclude that plaintiffs worked overtime hours for...