UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MELISSA CALLAHAN, on behalf of herself 

and all others similarly situated, 

Plaintiff, 

v. 

CITY OF CHICAGO, a municipal 

corporation, 

Defendant. 

No. 12 CV 362 

Judge Manish S. Shah 

MEMORANDUM OPINION AND ORDER

 Melissa Callahan is a taxicab driver in Chicago. She obtained her license to 

drive a taxicab in 2007, and drove full time between January 2009 and August 

2011. Callahan asserts that, during that period, she was unable to earn the 

minimum wage as defined by the Fair Labor Standards Act ($7.25 per hour) or by 

the Illinois Minimum Wage Law ($8.25 per hour). In 2012, Callahan sued the City 

of Chicago, claiming: (1) that the City was her employer under these statutes; and 

(2) that it violated those laws by failing to pay her the required minimum wages. 

The City moves for summary judgment on Counts IV and V of Callahan’s amended 

complaint. Callahan cross-moves for summary judgment on the same counts. 

 The City of Chicago closely regulates the taxicab industry. It licenses both 

the owners and drivers of cabs, sets maximum rates charged to consumers, and sets 

standards for drivers’ conduct and appearance, among other things. The City also 

benefits from taxis working within its borders. The City requires much from those 
2 

who would operate taxicabs, but the City has not gone so far as to employ the 

individual lessees who drive them—the City regulates, but it does not provide the 

business to which cabdrivers render service. As a result, the City was not 

Callahan’s employer under the FLSA or IMWL, and is not liable to her for any 

wages. 

 To prevail on a minimum-wage claim under the FLSA or IMWL, a plaintiff 

must prove not only that the defendant was her employer, but that she was not in 

fact paid the minimum wage. On this latter front, Callahan has not produced 

admissible evidence from which a jury could reasonably infer much, if anything, 

about her hourly income and whether it fell below the applicable minimum. Her 

own calculations are premised on inadmissible evidence and speculation. 

Consequently, Callahan cannot defeat the City’s motion for summary judgment. 

 For the reasons discussed below, the City’s motion is granted, and Callahan’s 

motion is denied. 

I. Legal Standard 

 Summary judgment may be granted where “there is no genuine issue of 

material fact and . . . the movant is entitled to judgment as a matter of law.” Hussey 

v. Milwaukee Cnty., 740 F.3d 1139, 1142 (7th Cir. 2014) (quoting Jackson v. Indian 

Prairie Sch. Dist. 204, 653 F.3d 647, 654 (7th Cir. 2011)). A genuine issue of 

material fact exists “if the evidence is such that a reasonable jury could return a 

verdict for the nonmoving party.” Serednyj v. Beverly Healthcare, LLC, 656 F.3d 

540, 547 (7th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 
3 

(1986)). In reviewing a summary-judgment motion or a cross-motion for summary 

judgment, a court construes all facts, and draws all reasonable inferences from 

those facts, in favor of the non-moving party. United States v. P.H. Glatfelter Co., 

768 F.3d 662, 668 (7th Cir. 2014) (quoting Laskin v. Siegel, 728 F.3d 731, 734 (7th 

Cir. 2013)). 

II. Facts 

A. Licensing and Regulation of Taxicabs 

 The Department of Business Affairs and Consumer Protection is an executive 

department of the City of Chicago. See Municipal Code of Chicago § 2-25-020. 

Among the powers and responsibilities of the department is to review and process 

applications for city business licenses. See id. § 2-25-050(b). Pursuant to this power, 

the department issues on behalf of the City approximately 49 types of business 

licenses, including licenses concerning public-passenger vehicles such as taxicabs. 

See [122] at 2 ¶ 5.1

 

1 Citations to the record are designated by the document number as reflected on the district 

court’s docket, enclosed in brackets; referenced page numbers are from the CM/ECF header 

placed at the top of filings. The facts related in this opinion are taken largely from relevant 

statutes and regulations, as well as from the parties’ Local Rule 56.1 statements of 

uncontested facts (and replies or responses thereto), which set forth the parties’ positions 

concerning the facts material to the motions for summary judgment. Some of the latter 

materials (and their exhibits or appendices) were filed under seal. To the extent this 

opinion discusses any content previously filed under seal, the party that originally filed that 

document must file on the court’s docket a public version of the same. The public version 

should leave visible any content referenced below. See City of Greenville, Ill. v. Syngenta 

Crop Protection, LLC, 764 F.3d 695, 697 (7th Cir. 2014). 
4 

 Before a taxicab may be operated in Chicago, the taxicab generally must be 

licensed by the City through the department. See MCC § 9-112-020.2 A taxicab 

medallion is a metal plate, provided by the City, to be affixed to the outside of a cab 

as a physical representation of a license to operate that vehicle as a taxicab. See

[122] at 8–9. ¶ 24; see also MCC § 9-112-010. Medallion licensees, or medallion 

holders, often form medallion-holder associations, or “taxicab affiliations.” See [122] 

at 8–9. ¶ 24. Yellow Cab and American United, for example, are well-known taxicab 

affiliations. See id. “Affiliates” are the members of a taxicab affiliation. See id.

 Licensed taxicabs must have certain features and equipment. See, e.g., MCC 

§ 9-112-140 (required safety features); id. § 9-112-510 (required taximeter 

equipment). They are also subject to inspection at the direction of the department 

commissioner. See id. § 9-112-050. Failure to follow the rules and regulations 

governing medallion holders may subject those owners to fines, or to suspension or 

revocation of their taxicab license(s). See id. § 9-112-370(b); see also Taxicab 

Medallion License Holder Rules and Regulations (July 1, 2012) (“2012 Medallion 

Holder Rules”), [121-29] at 27–28 (Rule TX17.02); Rules and Regulations for 

Taxicab Medallion License Holders (May 1, 2008) (“2008 Medallion Holder Rules”), 

[121-22] at 51 (Rule 15.02). 

 

2 A taxicab licensed by another jurisdiction may be operated in Chicago, but only under 

limited circumstances (such as when dropping off a passenger whose trip originated outside 

of the City). See MCC § 9-112-020(d). Such taxicabs can accept passengers in the City only 

if those passengers are traveling to the jurisdiction where the cab is licensed, and if the trip 

was arranged in advance. See id. 9-112-020(c). 
5 

 From time to time, the City of Chicago holds auctions for taxicab medallions. 

See [142] at 7 ¶ 22; see also MCC § 9-112-480. The average price of a medallion in 

2007 was $63,781. See [142] at 7 ¶ 21. As of 2013, the minimum bid at auction was 

$360,000. See id. ¶ 22. 

 Medallion holders may transfer their medallions to others. See MCC § 9-112-

430(d). In 2013, the average market value for a medallion transfer was more than 

$348,000. See [142] at 7 ¶ 20. When a medallion is transferred, the transferee must 

pay to the City a transfer fee, which ranges from 5 to 25 percent of the transfer 

price depending on certain factors (such as when the transferor acquired the 

medallion). See MCC § 9-112-430(g). Medallion owners who instead choose to keep 

their medallions and renew those taxicab licenses must pay a renewal fee. See id.

§ 9-112-150; see also 2012 Medallion Holder Rules, [121-28] at 7–8 (Rule TX2.04(d)); 

2008 Medallion Holder Rules, [121-22] at 38 (Rule 9.04(3)). Newly-issued 

medallions are subject to a licensing fee, as well. See MCC § 9-112-150. 

B. Licensing and Regulation of Public Chauffeurs 

Chicago taxicabs may be operated only by licensed chauffeurs. See MCC §§ 9-

104-020, 9-112-260. To obtain a public chauffeur’s license in Chicago, the applicant 

must satisfy certain criteria, including: (1) they must have a valid Illinois State 

driver’s license; (2) they must be at least 21 years old; (3) they must be able to 

speak, read, and write English; (4) they cannot have certain medical conditions, 

such as epilepsy; and (5) they must have successfully completed a mandatory 

training course. See id. § 9-104-030(2). The commissioner is tasked with providing 
6 

(or “caus[ing] to be offered”) such training courses, which may be done in “contract 

with the city colleges.” Id. § 9-104-030(7). 

 A licensed public chauffeur is not obligated to use her license, and so may 

take extended absences from driving if she wishes. See [148] at 2 ¶ 4; id. at 8 ¶ 15. 

However, to the extent a chauffeur does elect to use her license, she is subject to 

various rules and regulations governing her conduct. Regulations concerning a 

public chauffeur’s conduct are set forth in the City’s Municipal Code, see MCC § 9-

104-060 et seq., and in a series of rules promulgated by the department, see Public 

Chauffeurs Rules and Regulations (as amended December 3, 2012), [121-14]. For 

example, public chauffeurs must operate their vehicles safely and be “courteous to 

passengers . . . and other drivers,” id. at 20 (Rules CH5.08(a), (d)). They must also 

remain “clean and neat in their appearance at all times,” id. at 22 (Rule CH5.09). 

Appearing clean and neat includes wearing the proper attire—a shirt or blouse with 

sleeves, see id. If a passenger has left personal belongings in the taxicab, the driver 

must bring the items within 24 hours to the lost-and-found office of her taxicab 

affiliation, or to the nearest police department if the driver is operating an 

unaffiliated cab. See id. (Rule CH5.10). 

 Chauffeurs’ driving hours are also regulated to a certain extent. For example, 

current regulations prevent drivers from operating a taxicab for more than 12 

consecutive hours in a 24-hour period. See [148] at 7 ¶ 13 (citing MCC § 9-112-250).3

 

3 This regulation was not in place between January 2009 and August 2011, see [148] at 7 

¶ 13, the time period to which plaintiff’s alleged damages are limited, see [122] at 1 ¶ 1. 
7 

While in service, chauffeurs cannot leave their cabs unattended. See [121-14] at 20 

(Rule CH5.06). 

 The rules and regulations also address how a chauffeur may accept 

passengers, drive passengers to their destinations, and collect fares. For example, if 

the driver’s taxicab is “for hire,”4 she must agree to transport “any person . . . to any 

destination” unless certain exceptions apply (e.g., the driver is on her way to pick up 

a passenger who phoned in a taxicab request). Id. at 18 (Rule CH5.02(a)). If the 

request for cab service came directly to the driver through a radio-dispatch call 

made by her taxicab affiliation, she must respond to that call. See id. at 19 (Rule 

CH5.03). Drivers who have leased their cabs from an affiliation also have an 

affirmative duty to respond to dispatch calls requesting cab service for passengers 

in “underserved areas”5 at least once during a lease of 24 hours or fewer (or at least 

7 times during a weekly lease). See id. at 25 (Rule CH6.01(a)). If the chauffeur 

would like to attempt to find passengers using a cab stand (or in the vicinity of one), 

she must follow certain rules—e.g., she must go to the back end of the line if using 

the stand. See id. at 17 (Rule CH5.01). 

 

4 A chauffeur may designate their vehicle as “not for hire” when: (1) the driver is responding 

to radio or telephone orders; (2) the vehicle or fare meter is in disrepair or is out of service; 

(3) the driver is returning the vehicle to its garage; or (4) the driver is on her way to a meal 

or a break for “personal necessity” (i.e., bathroom break). See [121-14] at 18 (Rule 

CH5.02(c)). 

5 Underserved areas are, with certain exceptions, defined as “all areas within the corporate 

limits of the city of Chicago which are located either north of Devon Avenue; west of 

Ashland Avenue between Devon Avenue and Grand Avenue; west of Halsted Street 

between Grand Avenue and Roosevelt Road; or south of Roosevelt Road.” Public Chauffeurs 

Rules and Regulations: Definitions, [121-14] at 6. 
8 

 Once the driver has accepted a passenger, she must take the passenger to 

their destination “by the most direct route.” Id. at 19–20 (Rule CH5.04(c)); see also

id. at 33 (Rule CH11.02). Accordingly, drivers must know—or must have reference 

materials “immediately available” in order to determine—what that route is. Id. at 

19 (Rule CH5.04(b)). 

 Maximum fare rates are prescribed by the City, and are set forth in the 

Municipal Code. See MCC § 9-112-600(a). Drivers cannot charge more than the 

maximum permitted fare rate.6 See id. § 9-112-600(b); see also [121-14] at 34 (Rule 

CH11.05). Passengers may pay their fares using any form of legal tender, including 

credit cards. See [121-14] at 34 (Rule CH11.06(a)). 

 

6 The Municipal Code describes fare rates as follows: 

For the first 1/9 mile or fraction thereof: 

Forty-five cents of this initial mileage rate for the first 

ten taxicab fares which a driver transports per day is 

hereby designated for payment of workers’ 

compensation insurance. 

$3.25 

For each additional 1/9 mile or fraction thereof: $0.20 

For each 36 seconds of time elapsed: $0.20 

For the first additional passenger over the age of 12 

years and under the age of 65 years: 

$1.00 

For each additional passenger, after the first additional 

passenger, over the age of 12 and under the age of 65 

years: 

$0.50 

Vomit clean-up fee: $50.00 

MCC § 9-112-600(a). 
9 

 Members of the public may alert the City to potential violations of these rules 

and regulations by dialing “311.” See [142] at 4–5 ¶ 15.7 Rule violations can subject 

public chauffeurs to various penalties, including fines, or suspension or revocation 

of their chauffeur’s license. See, e.g., MCC §§ 9-104-040(a), 9-104-140; see also [121-

14] at 46 (Rule CH16.02) (“first offenses” may subject a driver to fines between $75 

and $750, while “repeated” or “aggravated” offenses may subject a driver to fines 

between $200 and $750). Before any such penalty may be imposed, however, the 

driver must be notified, and an administrative hearing provided upon written 

request. See MCC § 9-104-040(c). 

 

7 Plaintiff contends that the City “solicits” such complaints (or compliments) by posting 

signage in taxicabs “requesting” the public to provide comments or criticisms about a 

driver’s performance. See [142] at 4 ¶ 15. The City denies that it solicits or requests any 

such comments, though it admits that members of the public may elect to provide such 

information “through the City’s ‘311’ service.” Id. at 4–5 ¶ 15. The City also denies that it 

posts any signage in taxicabs requesting passengers to comment on driver performance, as 

the exhibits relied on by plaintiff purportedly do not support this statement. See id. 

 The City is correct that the references on which plaintiff relies do not suggest that 

the City posts any comment-or-complaint signs in taxicabs. Rule TX5.05 of the 2012 

Medallion Holder Rules does require that the words, “Call 311 for Compliments or 

Complaints” be printed on all taxi-meter receipts. See [121-28] at 24. But receipts—required 

to be available only “upon request of a passenger,” [121-14] at 34 (Rule CH11.07)—are 

different from posted signs that are visible to all passengers, as are required signs 

communicating fare and safety-inspection information. 

 A print-out from the City’s website explains that individuals may use the website to 

report problems with taxicabs. See [121-6]. The print-out does not address signage in the 

cabs, themselves. A video displayed on the department website, see [142] at 4 ¶ 15 (citing 

http://www.cityofchicago.org/city/en/depts/bacp/provdrs/vehic.html), describes “311” 

placards to be placed not in taxicabs, but on them—i.e., as bumper stickers. The video 

states that, as of “June 30” (year unspecified), the department will require all taxicabs to 

have on its bumper a sticker reading, “How’s My Driving? Compliments or Concerns Call 

311[.] Report Taxi Number.” The video ends by telling the viewer to “please call us. Tell us 

what your experience is like.” 

 The difference between soliciting comments and providing an opportunity to 

comment is immaterial at this stage—what is undisputed is that the City has a role in 

receiving information about cab-driver performance. 
10 

 Licensed taxicab drivers are also subject to special transportation-related 

taxes. The Metropolitan Pier & Exposition Authority Airport Departure Tax is 

imposed on cab drivers and other drivers licensed by the City to provide ground 

transportation for hire. See [142] at 13 ¶ 35; [121-7] at 4. Taxicab drivers who pick 

up passengers from either of Chicago’s major airports (O’Hare and Midway) must 

buy corresponding MPEA “tax stamps.” [122] at 10 ¶ 31. 

 C. Administrative Fees, Lease Rates, and Income

 To obtain a public chauffeur’s license, an applicant must pay a licensing fee. 

See [121-14] at 10 (RuleCH1.15); MCC § 9-104-070 ($15.00 for an “original” 

chauffeur’s license). First-time applicants must also complete a mandatory training 

course, as described above, and may be required to pay tuition for that course, see

[122] at 1 ¶ 2. Licenses may be renewed for an additional fee ($8.00 per renewal 

application). See MCC § 9-104-070. 

 The City does not own any taxicabs. See [122] at 9 ¶ 26. If a licensed public 

chauffeur wants to drive a taxicab but does not herself own a licensed cab (i.e., she 

is not a medallion holder), she may lease the cab from a taxicab affiliate; plaintiff 

here is such a lessee. See id. ¶ 25. The City has established a schedule of maximum 

lease rates based on the taxicab’s fuel efficiency. See MCC § 9-112-230.8 

 Taxicab drivers, including lessee-drivers such as plaintiff, earn money from 

passengers who pay the drivers for their taxicab services. See [122] at 9–10 ¶ 28. To 

 

8 For example, the maximum daily lease rate for a 12-hour shift is $74 for a taxicab whose 

fuel efficiency is greater than or equal to 36 miles per gallon (“Tier 1”), while the maximum 

lease rate for a vehicle achieving only 25 to 35 miles per gallon (“Tier 2”) is $69. See MCC 

§ 9-112-230(a). 
11 

the extent that this income derives from metered fares, the maximum fare rates are 

set by the City, see MCC § 9-112-600, as described above. A portion of a cab driver’s 

income may also come from tips. See [122] at 10 ¶ 30. The City does not control how 

much a given passenger may tip, see id., and indeed some drivers receive larger tips 

as a result of specific actions that they take. Some drivers, for example, receive 

larger tips because they: (1) advertise their taxicab services using business cards or 

online social media; (2) market themselves in a “unique” way, such as by singing to 

their passengers or by decorating their cabs; (3) provide entertainment or other 

amenities to their passengers, such as movies or television programming, reading 

materials, or internet access; or (4) connect with their passengers more quickly 

using mobile-phone technologies. See [148] at 8–9 ¶¶ 16–17. 

 Some taxicab drivers may also try to improve their income by avoiding areas 

where it is more difficult to connect with passengers, or by avoiding areas where the 

passengers, as the driver has learned, generally provide smaller tips, see id. at 12 

¶ 25. (Conversely, some drivers, including plaintiff, will keep track of large events 

such as sports games or theatre productions, and will try to be at those locations 

when the events are letting out. See [122] at 12 ¶ 37.) And some drivers will not 

pick up passengers from airports, because they do not find airport trips to be a good 

investment of their time. See [148] at 7 ¶ 13. 

 Drivers may also attempt to improve their earnings not by increasing their 

income, but by decreasing their expenses or other losses. For example, taxicab 

drivers may comparison-shop for gas prices and attempt to minimize the amount of 
12 

gas they use by decreasing their use of air conditioning, or by accelerating more 

smoothly. Plaintiff takes this approach. See [122] at 16 ¶ 48. Driving carefully may 

also lower a driver’s expenses through avoiding accidents. See id. ¶ 49. 

 D. Melissa Callahan’s Taxicab Driving 

 1. Callahan’s Licensure and Driving History 

Melissa Callahan first became a Chicago taxicab driver in 2007, when she 

obtained her public chauffeur’s license. See [122] at 1 ¶ 1; [142] at 1–2 ¶ 1. Before 

she obtained her public chauffeur’s license, Callahan completed a two-week training 

course at Harold Washington College; the course addressed geography and the rules 

and regulations for driving a taxicab in Chicago, among other things. See [122] at 1 

¶ 2. She paid approximately $275 in tuition for this course. See id. Callahan did not 

interview with the City to become a taxicab driver. See id. at 2 ¶ 3. She was never 

told by the City that she had been hired to perform work for the City. See id. The 

City did not ask Callahan to complete any tax-related forms, such as a W-4, as a 

condition for receiving her chauffeur’s license. See id. ¶ 4. 

 Callahan used her chauffeur’s license to drive taxicabs beginning in 2007, 

and she was a full-time cab driver between January 2009 and August 2011. See

[142] at 1–2 ¶¶ 1, 5. During that period, she would lease a taxicab from a cab owner 

of her choice. See id. at 2–3 ¶ 6; [122] at 14 ¶ 41; [141] at 2 ¶ 2. The leases that 

Callahan entered with the cab owner were typically daily leases of 12 or 24 hours 

each. See [141] at 2 ¶ 3. The City of Chicago did not provide Callahan with any 

taxicabs to drive. See [122] at 9 ¶ 27. 
13 

 While leasing taxicabs, Callahan purchased gasoline to use in the cabs. See 

id. at 10 ¶ 31. She also bought a guidebook that had a list of streets, spent money on 

car washes for the cabs, and purchased MPEA tax stamps. See id. The City of 

Chicago did not provide Callahan with gas for the taxis she leased, or with any 

other materials necessary to drive a taxicab. See id. at 8–9, ¶¶ 23, 27. Nor did the 

City provide Callahan with any passengers for her cab. See id. at 9 ¶ 27. 

 2. Control Over Callahan’s Taxicab Leases and Driving 

 Callahan selected the taxicab affiliations from which she leased her cabs; the 

City did not dictate her choice. See id. at 14 ¶ 41. When driving a leased taxicab, 

Callahan would decide where to go to look for passengers in need of taxicab 

services—unless, that is, she received a radio-dispatch call from the affiliate from 

whom she had leased her cab. See id. at 4 ¶ 10. Similarly, Callahan would decide 

whether to drive to a city airport in search of potential fares. See id. ¶ 11. It was 

also Callahan’s choice whether to use (or not) a particular taxicab stand. See id.

¶ 12. 

 The City generally required Callahan to take the most direct route to a given 

destination, but did not otherwise dictate the specific routes that she took. See id. at 

6 ¶ 18. Callahan set her own driving hours and decided when she would take 

breaks, though the City now limits (to twelve) the number of consecutive hours that 

a taxicab driver may drive. See id. at 4–5 ¶¶ 9, 17; see also MCC § 9-112-250(a).9

Callahan also decided if and when to take vacations from driving a taxicab, and did 

 

9 As noted above, this regulation was not in place when Callahan was a full-time taxicab 

driver (i.e., between January 2009 and August 2011). 
14 

not inform the City (or seek its approval) when taking such vacations. See [122] at 5 

¶ 15. Nor did she inform the City of any sick days she took from driving. See id.

¶ 16. She wore her own clothing while driving a cab (typically a pair of pants and a 

shirt); the City did not inspect her chosen attire or personal appearance. See id.

¶¶ 13–14. 

 3. Callahan’s Earnings, January 2009 to August 2011 

 Callahan did not keep complete records of her income and expenses from 

taxicab driving between January 2009 and August 2011—indeed, her recordkeeping 

was quite poor. She did recall that she had earned only enough money to cover her 

total expenses. See id. at 17 ¶ 53; [141] at 4 ¶ 7. For the purposes of this litigation, 

Callahan therefore estimated her earnings from driving a taxicab in 2009, 2010, 

and 2011, by estimating: (1) her household expenses (rent, utilities, and the like); 

and (2) taxi-related expenses (money spent on gas and cab leases). See id. In 

estimating her personal or household expenses, Callahan relied on some 

(unidentified) bills and receipts that she had kept; she had not retained all of those 

records, however, so she used rough estimates to fill in the gaps. See [122] at 17–18, 

¶¶ 53–57. She estimated her taxi-related expenses based on her personal knowledge 

and experience as a taxicab driver. See Declaration of Melissa Callahan, [121-26] at 

4 ¶ 20. Using this approach, Callahan estimated that she earned the following from 

driving a taxicab full time: $2,210 in 2009; $12,777 in 2010; and $9,414 in 2011 

(January through August). See [122] at 17–18 ¶¶ 54, 56–57. 
15 

 In 2013, Callahan filed amended tax returns for the years 2009, 2010, and 

2011. See [95] at 14 ¶ 59; [122] at 18 ¶ 59.10 Callahan did not provide her returnpreparer with any documents concerning her income and expenses during those 

years; she calculated these figures herself . See [95] at 14–16, ¶¶ 60, 62, 64; [122] at 

18–19, ¶¶ 60, 62, 64. She calculated those figures by looking at her household 

expenses (rent, utilities, etc.) and estimating her tax-related expenses (gas, cab 

leases), and then assuming that her income was approximately the same as her 

total expenses. See [141] at 5 ¶ 9. In her amended tax returns, Callahan reported 

having earned the following profits from taxicab driving: $2,158 in 2009; $12,832 in 

2010; and $9,414 in 2011. See [96-3] at 7; [96-4] at 7; [96-5] at 6. 

 Callahan also made some handwritten notes of what she spent on taxicab 

expenses (leases, gas), and what she earned from taxi driving, for seven months in 

2009 (February, May, June, July, August, November, and December) and two 

months in 2010 (January and February). See [141] at 2 ¶ 4. In addition, Callahan 

obtained some credit-card payment reports from 2012, which purported to show 

some earnings that Callahan had made as a taxicab driver in that year. See id. at 5 

¶ 8. 

 Between January 2009 and August 2011, Callahan did not keep any records 

of the number of hours she drove a taxicab for hire. See [122] at 21 ¶ 73. Nor did she 

keep a calendar or schedule of her driving. See id. Callahan did retain copies of 

 

10 In her original tax return for 2009, Callahan did not report any income from driving a 

taxicab. See [95] at 13–14 ¶ 58; [122] at 18 ¶ 58. She did report taxi-related income in her 

originally-filed 2010 and 2011 returns. See [96-6] at 4 (declaring $16,133 in profits in 2010); 

[96-7] at 4 ($3,574 in 2011). 
16 

nearly all of the taxicab lease agreements she entered in 2010 and 2011, however, 

and asserts that she worked all, or nearly all, of the hours of each lease. See [141] at 

3 ¶ 5. 

 E. Procedural History 

 In January 2012, Callahan sued the City of Chicago under the Fair Labor 

Standards Act. See [1]. Callahan subsequently amended her suit to be a putative 

class action, alleging that the City was her employer within the meaning of the 

FLSA, and that the City is liable under the Act because she did not earn the 

required minimum wage ($7.25 per hour), see [33] at 13–14 (Count V). Callahan also 

asserted a similar claim against the City under the Illinois Minimum Wage Law 

(Count IV), which requires that employees be paid a minimum of $8.25 per hour. 

See id. at 12–13. Three other counts were dismissed from the case and are not at 

issue here. See [39]. The City and Callahan both move for summary judgment on 

Counts IV and V of the amended complaint. [90]; [119]. 

III. Analysis 

A. Fair Labor Standards Act (Count V) 

 The FLSA was enacted in 1938 “to protect all covered workers from 

substandard wages and oppressive working hours.” Barrentine v. Arkansas-Best 

Freight Sys., Inc., 450 U.S. 728, 739 (1981). The goal was to ensure “a fair day’s pay 

for a fair day’s work.” Id. (quoting Overnight Motor Transp. Co. v. Missel, 316 U.S. 

572, 578 (1942)) (internal brackets and quotation marks omitted); cf. Vanskike v. 

Peters, 974 F.2d 806, 810 (7th Cir. 1992). Not all workers benefit from the Act’s 
17 

protections, however. These protections are afforded only to “employees.” See 29 

U.S.C. § 206(a) (“Every employer shall pay to each of his employees . . . wages at the 

[specified] rates . . . .”). The threshold question, then, is whether Melissa Callahan 

is an “employee” of the City of Chicago within the meaning of the FLSA. The statute 

itself provides little guidance, defining “employee” in a circular fashion. See id.

§ 203(e)(1) (“[T]he term ‘employee’ means any individual employed by an 

employer.”).11 The Act defines “employ” as “to suffer or permit to work.” Id. § 203(g). 

 Callahan did not interview to become a formal employee of the City of 

Chicago; she was never told by the City that she had been made, or would be made, 

an employee; and the City never provided her with an employee handbook, manual, 

or other personnel policy. See [122] at 2 ¶¶ 3–4. She was not, in other words, what 

one typically considers to be an “employee” in the traditional (or common-law) 

sense. See Bluestein v. Cent. Wis. Anesthesiology, S.C., 769 F.3d 944, 952 (7th Cir. 

2014) (quoting Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 

449–50 (2003)). But, as Callahan correctly points out, the FLSA uses a much 

broader definition of “employee” than is found at common law. See Estate of 

Suskovich v. Anthem Health Plans of Va., Inc., 553 F.3d 559, 565 (7th Cir. 2009); see 

also Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992) (“[The FLSA] 

stretches the meaning of ‘employee’ to cover some parties who might not qualify as 

such under a strict application of traditional agency law principles.”). Indeed, the 

Act’s definition of “employ” is “the broadest definition . . . ever included in any one 

 

11 “Employer” may include a public agency, see 29 U.S.C. § 203(d), which may be a political 

subdivision of the state (as here), see id. § 203(x). 
18 

act,” Reyes v. Remington Hybrid Seed Co., Inc., 495 F.3d 403, 408 (7th Cir. 2007) 

(quoting United States v. Rosenwasser, 323 U.S. 360, 363 n. 3 (1945)). 

 The City sets many aspects of a cab driver’s job performance. Callahan must 

possess a public chauffeur’s license and must drive a properly licensed cab. See

MCC §§ 9-112-020, 9-104-020. The City quite literally “permits” Callahan to work 

as a taxicab driver. But the statute, though broad, is not limitless. See Tony and 

Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 295 (1985); Walling v. Portland 

Terminal Co., 330 U.S. 148, 152 (1947). Once the appropriate boundaries have been 

drawn, the City-Callahan relationship falls outside of the Act. 

1. The City’s Involvement in Taxicab Operation 

 The statute provides that Callahan is the City’s employee if the City 

“suffer[s] or permit[s her] to work.” 29 U.S.C. § 203(g). Not just any work qualifies, 

however. Individuals are “working” within the meaning of the Act—and so are 

entitled to be paid for any time spent so “working”—when they are performing 

activities “controlled or required by the employer and pursued necessarily and 

primarily for the benefit of the employer and his business.” 29 C.F.R. § 785.7 

(quoting Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590 

(1944), overruled on other grounds and superseded on other grounds by statute as 

stated in IBP, Inc. v. Alvarez, 546 U.S. 21, 25–28 (2005)) (emphasis added); see also

Musch v. Domtar Industries, Inc., 587 F.3d 857, 859 (7th Cir. 2009) (citing Jonites v. 

Exelon Corp., 522 F.3d 721, 726 (7th Cir. 2008)); Sehie v. City of Aurora, 432 F.3d 
19 

749, 751 (7th Cir. 2005) (citing 29 C.F.R. § 785.7).12 Put another way, “employees 

[under the FLSA] are those who as a matter of economic reality are dependent upon 

the business to which they render service.” Sec’y of Labor, U.S. Dept. of Labor v. 

Lauritzen, 835 F.2d 1529, 1534 (1987) (quoting Mednick v. Albert Enters., Inc., 508 

F.2d 297, 299 (5th Cir. 1975)). Thus, the critical question here is whether the 

“business” to which Callahan renders service is, in fact, the City’s business. 

 Callahan is a taxicab driver; the service she provides is therefore the 

transportation of passengers by taxicab, and the City controls to quite a significant 

extent the operation of taxicabs in Chicago. Licensure, equipment, and other 

requirements for taxicabs are set by the City and determine the physical 

environment in which cab drivers work. The City also regulates taxi drivers directly 

through licensure, eligibility, and conduct requirements that are specific to them. In 

addition, taxicab drivers must follow certain rules regarding how they obtain and 

transport passengers. But controlling or regulating how taxicabs are operated is not 

the same as providing, or undertaking to provide, transportation by taxicab. The 

City does not perform the latter role. 

 The City does not provide the taxicabs themselves—and so does not provide 

transportation by taxicab directly—because it does not own any, see [122] at 9 ¶ 26. 

The City provides only the licenses (i.e., medallions) that allow private vehicle 

 

12 Sehie states that the general rule is that an employee’s work must be “necessarily and 

primarily for the benefit of the employer or his business.” 432 F.3d at 751 (quoting 29 

C.F.R. § 785.7) (emphasis added). The quoted federal regulation, however, uses the 

conjunctive “and his business.” 29 C.F.R. § 785.7 (quoting Tennessee Coal, 321 U.S. at 598) 

(emphasis added). 
20 

owners to operate their vehicles as taxicabs. See MCC § 9-112-010; [122] at 8–9 

¶ 24. Nor is there any evidence that the City provides taxicab transportation 

indirectly—i.e., by requiring or mandating that licensed taxicabs actually be used. 

Indeed, the evidence is to the contrary: taxicabs in Chicago may be driven lawfully 

only by licensed public chauffeurs, see MCC §§ 9-104-020, 9-112-260, and there is no 

requirement that public chauffeurs actually use their licenses, see [148] at 2 ¶ 4. 

This is a critical point. The City can, as Callahan asserts, effectively limit the 

maximum number of in-service taxicabs available to passengers by capping or 

otherwise controlling the number of medallions in circulation at any given time. But 

the City does not go so far as to set a minimum number of cabs that must be driven 

for hire. The City makes no guarantee to would-be passengers that taxicab services 

will be available. The City therefore does not provide transportation by taxicab, 

even indirectly. 

 Callahan offers several reasons why, in her estimation, the City is “in the 

taxi business.” Callahan posits that the City is in the taxicab business because: 

(1) the City profits from the sale of taxi medallions, medallion-transfer fees, and the 

collection of related taxes; (2) taxicab service is an essential part of transportation 

in the City; (3) the City owes medallion holders a reasonable return on their 

investment in medallions; and (4) the City acts in the interest of medallion owners, 

who used to supervise and control taxicab drivers. None of these arguments is 

persuasive. 
21 

a. Taxi-Related Revenues 

 The City allegedly “profits” from taxi services in several ways. To begin, says 

Callahan, the City collects millions of dollars from medallion auctions—such as in 

2013, for example, when the opening bid (for each of 50 available medallions) was 

$360,000. See id. at 30. The City also collects money when one medallion owner 

transfers his medallion to another, since the transferee must pay the City a fee; this 

fee ranges from 5 to 25 percent of the sale or transfer price. See id.; see also MCC 

§ 9-112-430(g). Finally, notes Callahan, the City collects taxes related to the 

provision of taxicab services: a monthly ground-transportation tax, see [120] at 31; 

see also MCC § 3-46-030(B)(1)(a)(i) (requiring the payment of $78.00 per month); 

and airport-related (MPEA) taxes, imposed on taxicab drivers when they pick up 

passengers from Chicago-area airports, see [120] at 31; [122] at 10 ¶ 31. 

 What Callahan describes, however, are not “profits” from a business of 

providing transportation by taxicab, but revenues derived from regulating the 

taxicab industry. Taxicab medallions, in effect, are permits that allow the permittee 

to use taxicabs for hire on city property. The City charges a fee for this privilege, 

and thus collects revenue from those who provide transportation by taxicab. But 

this does not suggest that the City itself provides (or guarantees provision of) those 

services. The power to tax may be the power to destroy, but the collection of taxes, 

fees, or revenue by a governmental entity does not make the regulated industry the 

business of that government. Nor does it cause the regulated person to render their 

services to the government. 
22 

b. Importance to Transportation in Chicago 

 Callahan also argues that the City is in the business of providing taxicab 

services because these services are essential to transportation in the City as a 

whole. See [120] at 32–33. In support of this argument, Callahan offers as expert 

testimony the opinion of Dr. Robert Ginsburg. See id. at 32. Dr. Ginsburg earned his 

undergraduate and doctoral degrees in Chemistry, and from June 2011 to October 

2013 served as Administrative Director of the Department of Transportation and 

Highways for Cook County, Illinois. See [121-13] at 4, 7. Dr. Ginsburg also served as 

an economic research advisor for Amalgamated Transit Union (from 1997 to 2007), 

during which time he worked on public-transit funding and transit legislation in 

Illinois. See id. at 5. 

 In Dr. Ginsburg’s opinion, “the [t]axi system is an essential part of the 

transportation system maintained and regulated by the City [of] Chicago, the 

counties in Northeast Illinois and the State of Illinois.” [121-13] at 10. This ultimate 

conclusion rests on three supporting conclusions: first, that taxi service is an 

essential component of providing transportation services to individuals eligible for 

assistance under the Americans with Disabilities Act; second, that taxi service is an 

important component of the City’s efforts to promote tourism; and finally, that taxi 

service is needed to fill gaps in the public-transit system by providing “what is 

referred to as ‘last mile’ transportation and transportation in unusual 

circumstances.” Id. The parties dispute whether these opinions are admissible. 
23 

 Under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), “the district 

court is tasked with determining whether a given expert is qualified to testify in the 

case in question and whether his testimony is scientifically reliable.” Gayton v. 

McCoy, 593 F.3d 610, 616 (7th Cir. 2010) (citing Daubert, 509 U.S. at 592–93). The 

City argues that Dr. Ginsburg meets neither requirement, and that his opinions 

therefore should be excluded from the summary-judgment record. See [144] at 26. 

 The City maintains that Dr. Ginsburg is unqualified to render the abovecited opinions because he holds degrees only in chemistry—irrelevant to the issues 

on which he claims to be an expert—and because he worked for only two years in 

transportation for Cook County, where he performed mostly budget-related and 

“HR” functions. See id. Whether a witness is qualified to give expert testimony must 

be determined by “comparing the area in which the witness has superior knowledge, 

skill, experience, or education with the subject matter of the witness’s testimony.” 

Gayton, 593 F.3d at 616 (quoting Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th 

Cir. 1990)); see also Lees v. Carthage Coll., 714 F.3d 516, 521 (7th Cir. 2013) 

(discussing the requirements of Rule 702 of the Federal Rules of Evidence). Each of 

Dr. Ginsburg’s conclusions must be examined individually to determine if he has 

adequate education, skill, and training to reach that conclusion. See Gayton, 593 

F.3d at 617. 

 Dr. Ginsburg first concludes that “[t]axi service is an essential component of 

the provision of transportation . . . services to individuals eligible for assistance 

under the Americans with Disabilities Act (ADA).” [121-13] at 10. According to Dr. 
24 

Ginsburg, the Taxi Access Program (TAP)—a city program that requires Chicago 

taxicab drivers to offer reduced rates to disabled customers—is “necessary to . . . 

provide sufficient service to meet the needs” of such persons. Id.13 Dr. Ginsburg may 

not offer an opinion on what is required under the ADA or, consequently, on what 

constitutes services “sufficient . . . to meet the needs of” individuals qualified for 

protection under the Act. What is required by the ADA is an issue of law, not of fact, 

and thus is not an appropriate topic for expert-witness testimony. On the other 

hand, whether taxicab service is “an essential component” of transportation services 

that are otherwise provided to ADA-qualified individuals is an issue of fact on 

which an expert may conceivably opine.14 Dr. Ginsburg, in other words, may (in 

theory) be qualified to offer an opinion on whether taxicab services are important or 

significant to persons deemed disabled under the ADA. 

 The City contends that Dr. Ginsburg is not qualified to give such an opinion 

(or, for that matter, to reach any other conclusion in his report) because Dr. 

Ginsburg focused primarily on budget management and human-resources issues 

while working in the Department of Transportation and Highways for Cook County. 

 

13 The Taxi Access Program provides individuals who have been certified as “paratransit 

customers” the opportunity to travel by taxicab at reduced rates if that travel originates in 

the City of Chicago. See Exhibit B to Ginsburg Expert Report, Taxi Access Program (TAP): 

Customer Guide (November 1, 2011), [121-13] at 19. Under TAP, certified paratransit 

customers may purchase a limited number of one-way taxicab rides for only $5.00 each (up 

to a value of $13.50 per ride). See id. 

14 Who is qualified (or “eligible”) for protection under the ADA is also a legal issue and so, 

too, is a topic that Dr. Ginsburg may not properly reach. Consequently, I understand Dr. 

Ginsburg’s references to “individuals eligible for assistance under the [ADA],” [121-13] at 

10—and, similarly, to “ADA eligible individuals,” id.—to concern persons who, under 

applicable legal precedent, necessarily fall within the sweep of the statute’s protections. 
25 

See [144] at 26. Dr. Ginsburg did, as defendant says, have “fiscal management” 

responsibilities within the County’s Department of Transportation, and he did also 

manage “Personnel/HR functions” there. See C.V. of Robert E. Ginsburg, [121-13] at 

4. But he did not do only those things. He also designed and managed the 

implementation of a Long Range Transportation Plan, see id., and his experience 

includes analyzing and developing “regulations and legislation regarding 

transportation and public transit in the Chicago region,” [121-13] at 10.15 These 

aspects of Dr. Ginsburg’s background must also be taken into account. See Gayton, 

593 F.3d at 616 (“The court should . . . consider the proposed expert’s full range of 

experience . . . .”) (citation omitted). 

 Nevertheless, Dr. Ginsburg has not provided enough detail about his 

background and experience to reasonably conclude that he is qualified to render an 

opinion on the extent to which taxicab services are important to travelers deemed 

disabled under the ADA. Dr. Ginsburg offers only vague descriptions of his prior 

responsibilities while working for the County’s Department of Transportation and 

the Amalgamated Transit Union, and none of these descriptions suggests that he 

gained from his work any special insight into the needs and activities of disabled 

travelers in Chicago. For example, Dr. Ginsburg claims to have worked for the 

 

15 It is unclear from Dr. Ginsburg’s report where he gained this experience. Based on his 

C.V., I assume that Dr. Ginsburg worked on transit-related regulations and legislation 

while serving as an economic research advisor for Amalgamated Transit Union. See [121-

13] at 5 (listing as “Projects & Accomplishments” for the Union: “[d]eveloped legislative 

proposals on Public Transit Funding”; “[p]repared and presented testimony/reports at 

legislative hearings”; and “[a]cted as an analyst for Chair of IL House Mass Transit 

Committee with the responsibility of executing several sections of 2008 IL transit 

legislation including Performance Management.” Id. 
26 

County on a “Long Range Transportation Plan.” See [121-13] at 4. But he provides 

no information about what this plan actually entailed. Similarly, Dr. Ginsburg 

states that while working as an advisor for the Union, he “[d]eveloped legislative 

proposals” regarding public-transit funding, prepared (presumably related) reports, 

and “execut[ed] several sections of [the Illinois] transit legislation” in 2008, 

including Performance Management. See id. He does not explain whether, if at all, 

this work touched on transportation for disabled individuals. 

 Dr. Ginsburg’s second conclusion is that taxi service is an “important 

component” of the City’s efforts to promote tourism in Chicago. See id. at 10. 

However, the lack of detail concerning his background again prevents a finding that 

Dr. Ginsburg is qualified to form the opinion he now offers. It is not apparent that, 

from the experiences discussed above, Dr. Ginsburg acquired any specialized 

knowledge about tourism in Chicago, or about how the provision of taxicab services 

intersects (or to what extent) with that industry. General references to prior work 

on transportation plans and transit-related legislation are insufficient. 

 Dr. Ginsburg’s third conclusion is that taxicabs are necessary to fill gaps in 

the City’s public-transit system, such as by providing “last mile” transportation, see 

id. Whether Dr. Ginsburg is qualified to reach this last conclusion is a closer 

question. He states in his report that this conclusion is based on: Dr. Ginsburg’s ten 

years of experience analyzing and making recommendations on Chicago Transit 

Authority (CTA) budgets and state legislation for the Amalgamated Transit Union; 

two years working as a consultant to the Regional Transportation Authority 
27 

concerning performance-management requirements for the CTA (and other regional 

transportation entities);16 and his two years of experience with the County’s 

Department of Transportation and Highways. See id. It is certainly conceivable 

that, while performing such work, Dr. Ginsburg obtained particular insight into the 

intricacies of the transit system in Chicago—and, more critically for present 

purposes, that he acquired some specialized knowledge concerning whether, and to 

what extent, taxicabs may fill any gaps in such a system. Once again, however, his 

C.V. and report make clear only that he worked generally on transportation-related 

projects in Chicago. These materials do not provide specific details about those 

projects, and so do not provide enough facts to reasonably conclude that Dr. 

Ginsburg is qualified to offer an opinion on the gap-filling potential of taxicab 

services in the larger transit system of Chicago. 

 Dr. Ginsburg is not qualified, on this record, to reach any of the three 

conclusions appearing in his report. He therefore is not qualified to offer the more 

general opinion—that taxicabs are “an essential part of the transportation system 

maintained and regulated by the City,” id., since that opinion is based on the three 

supporting conclusions just discussed, see id. Because Dr. Ginsburg’s opinions are 

not admissible due to his lack of qualification, I do not reach defendant’s argument 

 

16 Very little is mentioned in Dr. Ginsburg’s C.V. about his work for the Regional 

Transportation Authority. He lists the Authority as one of his “[k]ey clients managed” in 

2008 through 2010, but does not provide any information about the details of that work. See

[121-13] at 5. He otherwise describes his responsibilities during that period as generally 

involving consulting work focused on providing economic analyses, strategic research, and 

campaign design, as well as providing evaluations of investment potential and the viability 

of business proposals. See id.
28 

that Dr. Ginsburg’s opinions are also unreliable (and thus inadmissible under 

Daubert on separate grounds), see [144] at 26.17 

 Moreover, the undisputed benefits that taxicabs provide to the City (as 

identified by Dr. Ginsburg) do not support Callahan’s conclusion that her work 

renders service to the business of the City. First, it is undisputed that the City 

requires taxicab affiliations and medallion holders to charge reduced rates to 

disabled riders. See Exhibit B to Ginsburg Report, Taxi Access Program (TAP): 

Customer Guide (2011), [121-13] at 19; Exhibit C to Ginsburg Report, Rules and 

Regulations for Affiliations (2001), [121-13] at 33; 2008 Medallion Holder Rules, 

[121-22] at 43 (Rule 12.01).18 Regulations require taxicab affiliations to ensure that 

 

17 The City faults Dr. Ginsburg’s statements for not being based on “scientific, technical, or 

specialized knowledge,” and highlights that Dr. Ginsburg himself has admitted: (1) that his 

opinions may not be tested by any “prevailing standard”; and (2) that he has not relied on 

any quantitative data or applied a “scientific method.” See [144] at 26. For the reasons 

discussed above, I do not decide whether Dr. Ginsburg’s opinions are reliable enough to 

pass muster under Daubert as codified in Rule 702 of the Federal Rules of Evidence. I 

merely note that the standard of reliability as set forth in Rule 702 is a flexible one: the 

specific factors enumerated in that rule—including whether the testimony is based on 

“sufficient facts or data,” and whether the testimony is “the product of reliable principles 

and methods,” Fed. R. Evid. 702—must be applied only “where they are reasonable 

measures of . . . reliability,” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) 

(emphasis added); see also id. at 150 (“[T]he gatekeeping inquiry must be tied to the facts of 

a particular case.” (quoting Daubert, 509 U.S. at 591)) (internal quotation marks omitted). 

Reliability, in other words, does not always require the kind of rigorous quantitative 

analysis typically found in more data-driven opinions or testimony. 

18 Dr. Ginsburg relies on the Rules and Regulations for Affiliations dated December 23, 

2001. See Exhibit C to Ginsburg Report, [121-13] at 30. The December 2001 rules and 

regulations were promulgated pursuant to Section 2-24 of the Municipal Code of Chicago, 

see id. at 31, which has since been repealed. The current version of the applicable rules and 

regulations (now entitled “Taxicab Medallion License Holder Rules and Regulations,” 

effective July 1, 2012) were promulgated pursuant to Chapters 2-25 and 9-112 of the Code. 

See [121-28] at 1–2. (Chapter 2-25 of the Code describes the powers and duties of the 
29 

only TAP-qualified taxicab drivers are dispatched to answer requests from TAPeligible passengers for taxicab services, and that discounts are provided to TAPeligible patrons who hail cabs on the street. See [121-13] at 34 (Rule No. 2.3(f)); TAP 

Customer Guide, id. at 22. But there is an important difference between requiring 

taxicab affiliates to offer reduced rates (for transportation that the taxicab affiliates 

have already chosen to provide), and requiring affiliates to provide taxicab rides in 

the first instance. The latter is the business to which Callahan renders service—

providing transportation by taxicab. TAP is a service offered by the City to ADA 

eligible customers, but the “service” offered is a reduction of prices for preexisting 

taxicab services, not a provision of those services in the first place. If a taxicab 

affiliate has not decided to use its medallions, then participation in TAP effectively 

requires no action at all. Rate-setting regulates—and the City may stand to benefit 

in some way from that regulation—but it does not cause the City to take on the 

regulated business as its own. 

 Similarly, the City stands to benefit from setting a simplified rate structure 

and standardized procedures for taxi transportation to and from airports—and the 

City announces the existence of these services. In addition, says Dr. Ginsburg, 

taxicabs “provide options for people with lots of luggage,” and for those who work 

late or who are unfamiliar with the area (tourists). See [121-13] at 11. The “City of 

Chicago and the transit agencies,” he says, “need to provide a variety of options and 

additional convenience to such travelers,” since the bus-and-train system is not 

 

Business Affairs and Consumer Protection Department, as discussed earlier. See MCC § 2-

25-050.) 
30 

always sufficient to meet their needs.19 Id. But Dr. Ginsburg points to no evidence 

that the City must provide transportation of any kind; and his opinion that the City 

should provide transportation by taxicab misses the point. The crucial question is 

not whether the City ought to provide transportation by taxicab, or whether it 

benefits from the provision of such services by others. The relevant question is 

whether the business to which Callahan renders service is the City’s. Dr. Ginsburg 

merely identifies a positive consequence of having taxicabs in Chicago: flexibility for 

travelers. But the City does not provide the service, does not mandate the service, 

and does not require medallion holders to use their medallions for tourists or 

anyone else. 

c. Return on Medallion Investments 

 Citing Yellow Cab v. City of Chicago, 919 F.Supp. 1133 (N.D. Ill. 1996), 

Callahan argues that the City must be “in the taxi business” because medallion 

owners spend hundreds of thousands of dollars to acquire taxicab medallions, and 

the City has a constitutional obligation to ensure a reasonable return on those 

investments. See [120] at 33 (citing Yellow Cab, 919 F.Supp. at 1140). Callahan’s 

reliance on Yellow Cab is misplaced. 

 In Yellow Cab, a taxicab affiliation sued the City of Chicago alleging, among 

other things, that the City had effected an unconstitutional taking of the 

affiliation’s property by setting maximum taxicab lease rates. See 919 F.Supp. at 

 

19 The “bus-and-train” system is not provided by the defendant. As Dr. Ginsburg noted at 

his deposition, the Chicago Transit Authority and the Regional Transportation Authority 

are entities distinct from the City of Chicago. See June 20, 2014 Deposition of Robert Ethan 

Ginsburg, [143-10] at 7–8. 
31 

1140. The affiliation contended that the lease rates set by the City did not permit 

the affiliation to charge enough for its leases in order to pay its own expenses and 

earn a reasonable rate of return on the medallions it had acquired. See id. The 

question in Yellow Cab was whether the maximum lease rates as set by the City 

were so low as to be confiscatory of the affiliation’s property (i.e., its medallions). See 

id. Whether the City directly or in effect provided transportation by taxicab was not 

at issue in that case, and the theoretical possibility that a government could 

confiscate or take a business does not mean that that business is the government’s 

for purposes of the FLSA. 

d. The City’s Role in Relation to Medallion Owners 

 Finally, Callahan argues that the City is “in the taxi business” because the 

City: (1) has effectively usurped the role of taxicab affiliates, who used to control 

taxicab drivers through an employer-employee-type relationship; and (2) acts in 

those affiliates’ interests. See [120] at 23–25, 31. Callahan first relies on Local 777, 

Democratic Union Org. Comm., Seafarers Int’l Union of N. Am., AFL-CIO v. NLRB, 

603 F.2d 862 (D.C. Cir. 1978), for the proposition that the City has stepped into the 

shoes of the medallion owners. 

Democratic Union is unhelpful to Callahan. In that case, the D.C. Circuit 

examined two taxicab affiliations in Chicago—Yellow Cab and Checker—which had 

recently switched from the traditional “commission system” to a newer lease-based 

system. See id. at 866. Under the commission system, the taxicab affiliations would 

earn money by taking a certain percentage of the fares paid to the individual 
32 

drivers who used those companies’ cabs. See id. In 1975, however, the companies 

retired the old system and replaced it with a new one—a leasing system—in which 

drivers would keep their fares and instead pay the cab companies a flat rate for use 

of the licensed taxicabs. See id. When the National Labor Relations Board concluded 

that the companies were still the employers of the drivers under the National Labor 

Relations Act (and were thus obligated to bargain with the drivers’ union 

representative), the companies filed suit under the NLRA to challenge that order. 

See id. at 866, 868. The Court of Appeals determined that the drivers were not the 

companies’ employees under the Act, because the companies imposed “virtually no 

control . . . over the lessee-drivers, independent of municipal regulations.” Id. at 

875. “Government regulations,” the court observed, “constitute supervision not by 

the employer but by the state.” Id. 

 Callahan would read Democratic Union to stand for the proposition that, if 

the taxicab affiliates who lease the use of their medallions are not the employers of 

the lessees, then the government must be (since it now “supervises” the drivers 

through regulation). But this is not what Democratic Union says. The court in that 

case stated only that a putative employer is not “controlling the driver” when it 

obligates him or her to comply with the law. See id. The court did not opine that, by 

eliminating through regulation the need for supervision or control by a direct 

employer, the City itself had become that employer. To the contrary, the court 

concluded that the lessee-drivers “essentially work[ed] for themselves.” Id. at 877. 
33 

 Callahan asserts that even if the City is not her direct employer, it is 

nonetheless her employer under the FLSA because it acts “in the interest of” the 

medallion owners who, according to Callahan, are “unquestionably in the taxi 

business.” [120] at 24–25. Here Callahan relies on Section 203(d) of the FLSA, see 

id. at 24, which states that the term “employer” as used in the Act includes “any 

person acting directly or indirectly in the interest of an employer[,] and includes a 

public agency,” 29 U.S.C. § 203(d). But Callahan’s analysis is not quite correct. Even 

assuming that, in regulating taxicabs, the City of Chicago is acting in the interest of 

the medallion owners (addressed further below), Callahan has not provided any 

evidence suggesting that the medallion owners, under the current lease-based 

system, are indeed the employers of the lessee-drivers who drive their cabs. In fact, 

Callahan argues just the opposite: she contends, as just discussed, that the City has 

replaced the taxicab affiliate as the employer. See [120] at 24 (discussing 

Democratic Union); see also id. (arguing that the medallion owner “used to be the 

employer”) (emphasis added). If the taxicab affiliates are no longer the drivers’ 

employers, then the City is not acting “in the interest of an employer” even if it has 

somehow acted in the interests of the medallion owners. 

 Nor am I persuaded that the City has indeed acted in the medallion owners’ 

interests. Callahan maintains that the City must have done so, since it now 

“supervises” drivers’ conduct such that the medallion owners no longer have to. See

[120] at 24. But Callahan casts too wide a net. In essence, she argues that the City 

acted in the medallion owners’ interests because the owners derived a benefit from 
34 

the City’s regulation—that is, relief from having to supervise or otherwise monitor 

taxicab drivers’ behavior. Such a reading of Section 203(d), however, would render 

the reach of that provision virtually boundless. Under Callahan’s interpretation, a 

government or regulatory agency would by statute “employ” any person whose 

direct employer relied on ordinances, rules, or regulations to set the parameters of 

an employee’s job performance. There is no reason to assume this was Congress’s 

intent in drafting the FLSA. 

 The FLSA is a broad statute, and those who reap the benefits of another’s 

labor (i.e., those who suffer or permit others to work) can be employers under the 

Act—even if they are not the direct source of the worker’s remuneration, or the sole 

entity with control over wages or income earned. See, e.g., Reyes, 495 F.3d at 406–09 

(discussing the concept of joint employment); Reich v. Circle C. Invs., Inc., 998 F.2d 

324, 326–29 (5th Cir. 1993) (concluding that the defendant nightclub owners 

“employed” several dancers who used the club’s stages, even though the dancers 

were paid only in tips from the club’s customers and not by the owners themselves). 

But FLSA liability requires that the work at issue be primarily and necessarily for 

the benefit of the defendant-employer’s business. This was true in Circle C., for 

example, where the workers were required to comply with weekly work schedules 

set by the defendants. See 998 F.2d at 327 (noting that the nightclub owners would 

fine the dancers for any non-compliance with the schedule). By mandating that 

certain hours be worked, the defendants in that case not only benefitted from the 

dancers’ work, but made the dancers’ business their own. The defendants, in other 
35 

words, made dancing a part of their nightclub business. Here, however—while the 

City of Chicago created and now regulates the market for transportation by taxicab 

(and benefits from the existence of taxicabs)—the City does not provide to its 

residents or visitors transportation by taxicab, either directly or indirectly. 

Callahan therefore did not work for the City within the meaning of the FLSA, since 

her activities were not necessarily and primarily for the benefit of the City’s 

business.20 See 29 C.F.R. § 785.7. Thus, as a matter of law, the City did not suffer or 

permit Callahan to work within the meaning of the FLSA, and so did not “employ” 

her under that Act. 

2. The “Economic Reality” of Callahan’s Relationship with the City

 The parties focus a great deal on the Seventh Circuit’s opinion in Secretary of 

Labor v. Lauritzen, in which the court articulated a series of six criteria to be 

considered when determining whether a given worker is an employee under the 

FLSA. See 835 F.2d at 1534–35. The criteria, explained the court, are meant to 

assist in assessing the “economic reality of the . . . working relationship.” Id. at 

1534. Those six criteria are: 

1) the nature and degree of the alleged employer’s control as to the 

manner in which the work is to be performed; 

2) the alleged employee’s opportunity for profit or loss depending upon 

[her] managerial skill; 

 

20 The question that must be answered in this case is whether the business to which 

Callahan renders service (transportation by taxicab) is the City’s business. Defining the 

extent to which the City may have other businesses (if any) under the FLSA, or what those 

businesses might be, is not necessary to resolve the parties’ cross-motions. 
36 

3) the alleged employee’s investment in equipment or materials 

required for [her] task, or [her] employment of workers; 

4) whether the service rendered requires a special skill; 

5) the degree of permanency and duration of the working relationship; 

6) the extent to which the service rendered is an integral part of the 

alleged employer’s business. 

Id. at 1535. No single factor or criterion is controlling, however, as it is the totality 

of the circumstances surrounding the work activity that must be evaluated. See id.

at 1534. 

 As the City points out, the Lauritzen test is an awkward fit for this case. See

[93] at 11–15. The factors described in Lauritzen are most logically applied to 

situations where it is clear that the defendant hired the plaintiff to perform a 

certain kind of work (specifically, agricultural work). In such cases, the issue to be 

resolved is whether the plaintiff was hired as an “employee” or merely as an 

“independent contractor.” See Lauritzen, 835 F.2d at 1535. Here, however, the facts 

suggest that Callahan was never really hired by the City at all. She did not 

interview with the City; she was never told that she had been hired to work for the 

City; she did not receive any tax- or employment-related forms from the City; and 

once she obtained her public chauffeur’s license, she never informed the City of any 

absences that she took from driving a taxicab (such as vacation or sick days). See

[122] at 2, 5 ¶¶ 3–4, 15–16. Thus, the question here is not really whether Callahan 

was hired as an employee rather than as an independent contractor, but whether 

she became a sort of de facto employee of the City when she obtained her public 
37 

chauffeur’s license (and thus became subject to certain municipal regulations if and 

when she decided to use her license). 

 Despite the awkwardness of applying Lauritzen’s six-factor test to the 

scenario at hand, Lauritzen is a decision of the Seventh Circuit on the meaning of 

“employ” under the FLSA, and it is not my place to disregard it.21 Even under the 

Lauritzen analysis, however, Callahan is not an employee of the City of Chicago 

within the meaning of the FLSA: although a few of the six factors weigh in her 

favor, Callahan is not economically dependent on a business of the City. 

a. Factors Favoring Employee Status 

 A few of the Lauritzen factors support Callahan’s claim. The first is the 

nature and degree of control over how Callahan performs her work. See Lauritzen, 

835 F.2d at 1535. The City contends that it does not control the day-to-day details of 

how Callahan performs her job, such as: when to start or stop driving for the day (or 

to take breaks); where to look for potential passengers; how to interact with 

passengers; what to wear while driving; or which exact route to take to a given 

destination. See [93] at 17–21. But the City’s focus is too narrow. A defendant’s 

right to control is relevant under Lauritzen even where that right “applies to the 

entire . . . operation, not just the details” of that operation. 835 F.2d at 1536. Even if 

 

21 A multi-factor test that does not provide clear weights to merely illustrative factors is 

subject to the criticism that it creates an illusion of objectivity and predictability. See Teed 

v. Thomas & Betts Power Solutions, LLC, 711 F.3d 763, 766 (7th Cir. 2013). In Lauritzen

itself, the factors were not particularly useful. The majority opinion walked through them, 

but ultimately focused on the question of economic dependence, see 835 F.2d at 1538 

(treating other factors as “aids-tools”), and the concurring opinion explained a number of 

deficiencies in the multi-factor approach, see id. at 1540–45. 
38 

the City does not dictate the nuances of how Callahan drives a taxicab for pay, she 

is nonetheless subject to a plethora of rules and regulations, set by the City, that 

govern the operation of taxicabs as a whole. Moreover, the City can and does enforce 

those regulations. In each of the years from 2009 to 2012, for example, the City 

issued more than 1,600 citations to taxicab drivers for “discourtesy.” See [142] at 4 

¶ 12. And in 2012, the City fined 39 drivers for failing to take the “most direct 

route” to their passenger’s chosen destination, see id. at 4 ¶ 14. Although the City 

may not control every aspect of how taxicab drivers perform their work, it 

nonetheless maintains significant control over the operation of taxicabs. The first 

Lauritzen factor therefore weighs in plaintiff’s favor. 

 Also in plaintiff’s favor is the fourth Lauritzen factor: whether the service 

rendered requires a special skill, 835 F.2d at 1535. Although at least some skill is 

required to drive a taxicab in Chicago—e.g., familiarity with the City’s geography, 

knowledge of where one-way streets are located, see [93] at 26—such skills are not 

sufficiently specialized. These are not skills, in other words, that require a 

substantial amount of particular training. (Indeed, the training course that 

Callahan took to get her public chauffeur’s license lasted for only two weeks. See

[122] at 1 ¶ 2.) Because an unskilled job suggests the worker is poor in human 

capital, it “augurs for a conclusion of employment.” Lauritzen, 835 F.2d at 1541 

(concurring opinion). 
39 

b. Factors Favoring Non-Employee Status 

 The remaining Lauritzen factors tend to show that Callahan is not an 

employee of the City of Chicago within the meaning of the FLSA. 

 The third criterion focuses on the parties’ respective investments in 

equipment or materials required to complete the work at hand. See Lauritzen, 835 

F.2d at 1535, 1537. To the extent the putative employee made a disproportionately 

small investment in the venture as compared to the putative employer, she is more 

likely to be economically dependent on that entity or individual. See id. at 1537. 

Taxicab drivers like Callahan invest in their driving. For example, drivers must 

spend money to acquire and maintain their public chauffeurs’ licenses—first by 

completing a mandatory training course (for which Callahan paid $275) and by 

paying a licensing fee ($15), then by paying any applicable renewal fees ($8 per 

application), see MCC §§ 9-104-030(2), 9-104-070. Taxicab drivers must also lease a 

cab if they do not own one themselves. Lessee-drivers like Callahan may have to 

pay for gas, too, or for MPEA tax stamps. See [122] at 10 ¶ 31. Callahan also 

purchased a guidebook containing a list of Chicago streets, and occasionally spent 

money on car washes to keep the taxicabs clean. See id. 

 On the other hand, lessee-drivers such as Callahan do not have to pay for the 

major capital investments—the taxicab medallions or the taxicabs themselves. But 

who makes those? It is not the City, as the City does not even own any taxicabs. See 

id. at 9 ¶ 26. It is the medallion owner who pays for—and thus invests in—the 

taxicab, and the medallion owner who pays for and invests in the license to use it 
40 

(i.e., the medallion). That the City collects revenue from and thus benefits from 

medallion sales is inconsequential, since the City retains that money even if the 

medallion owners do not use those licenses by putting taxicabs into service. The 

City has made no major investment in Callahan’s driving that it stands to lose. 

Relative to the City, Callahan made a disproportionately large investment in 

driving a taxicab, and this Lauritzen factor therefore weighs in the City’s favor. 

 The fifth criterion is the “degree of permanency and duration of the working 

relationship.” 835 F.2d at 1535. Permanency suggests that the worker is 

economically dependent on the putative employer. In assessing the permanency of a 

working relationship, it does not matter that a given relationship is temporary. 

Temporary work relationships—e.g., seasonal work relationships—may be 

permanent and exclusive for their duration, and thus “permanent” under Lauritzen. 

See id. at 1537 (citing Donovan v. Gillmor, 535 F.Supp. 154, 162–63 (N.D. Ohio 

1982))). 

 Callahan argues that any full-time work as a licensed taxicab driver is 

“permanent work” for FLSA purposes, and that she therefore qualifies as a 

permanent worker because she drove a taxicab full time for two years. See [120] at 

29. The problem with this argument is that it conflates licensure (i.e., permission) to 

perform a given task with an affirmative request to perform that task. The latter is 

what occurred in Lauritzen, where the defendants (pickle/cucumber farmers) hired 

the plaintiffs (migrant families) to do something particular to benefit the 

defendants’ business (pick pickles/cucumbers during harvest season). See 835 F.2d 
41 

at 1532. There was, in other words, at least an implicit expectation on the 

defendants’ part that the plaintiffs would—for several months—do what had been 

asked of them: pick pickles. See id. (noting that harvest season typically lasted from 

July through September). Here, by contrast, the City had no such expectation. 

While the City granted Callahan permission to use its streets for the purpose of 

driving a taxicab for hire, there was no requirement that Callahan—or any other 

licensed chauffeur—actually take advantage of that permission by driving a taxicab. 

Licensed taxi drivers, in other words (and as discussed further above), need not 

actually use their licenses. Thus, while it may be that Callahan chose to use and did 

use her license consistently for a period of two years, there is no evidence suggesting 

that the City had any expectation that Callahan would do so, or even knew about it 

when she did. Callahan’s work therefore was not “permanent work” for the City 

within the meaning of Lauritzen. See 29 C.F.R. § 785.11 (explaining that “working 

time” under the FLSA is time that the “employer knows or has reason to believe 

that [the employee] is continuing to work”). This factor therefore suggests nonemployee status, and weighs in defendant’s favor. 

 The parties vigorously dispute whether Callahan had an opportunity for 

profit or loss depending on her managerial skill, such that she was economically 

independent of the City. See Lauritzen, 835 F.2d at 1535 (second factor). While the 

City maintains that Callahan had “significant control” over her ability to increase 

her earnings (and therefore her profits) as a taxicab driver, see [93] at 23–25, 

plaintiff argues that she had next to no control at all, see [120] at 20–23. At the 
42 

heart of the parties’ debate is the undisputed fact that the City, in regulating 

taxicab operation, sets the maximum fare rates that drivers may charge their 

passengers. 

 Defendant contends that, despite its control over maximum fare rates, lesseedrivers such as Callahan nonetheless have substantial opportunity to increase their 

actual earnings, and thus their profits, because: fares come from passengers; 

passengers may pay more than the maximum chargeable fare rate (i.e., they may 

include a tip); the more passengers are driven, the more the driver earns (in fares 

and tips); and drivers determine how best to maximize (1) the number of passengers 

they transport and (2) the tips that those passengers pay. See [93] at 23–24. 

 The undisputed facts do suggest that drivers have at least some control over 

how many passengers they transport—and, consequently, how many fares they 

collect—in a given time period. Drivers may keep track of large public events, for 

example (such as sports games or theatre productions), and seek out potential fares 

at those times and locations. See [122] at 12 ¶ 37. Similarly, some drivers may avoid 

looking for possible fares at airports, as they do not find such trips to be a good 

investment of their time, see [148] at 7 ¶ 13. When Callahan herself drove a leased 

taxicab, she decided where and when to look for passengers in need of a ride (unless 

she received a dispatch call from the taxicab affiliate). See [122] at 4 ¶ 10. Moreover, 

the current regulation limiting the number of consecutive hours a taxicab driver 

may drive (see MCC § 9-112-250(a)) was not in effect between January 2009 and 

August 2011, see [122] at 4 ¶ 9, and so Callahan was also free—within the 
43 

boundaries of a given lease—to decide how many hours she would drive a taxicab 

per day. 

 The facts also suggest that taxicab drivers have at least some opportunity to 

earn larger tips based on their managerial skills. Some drivers, for example, 

receiver larger tips because they build customer loyalty with individualized service. 

See [148] at 8–9 ¶ 16. Some drivers garner larger tips because they market 

themselves in unique ways or provide certain amenities for their passengers. See id.

at 8–9 ¶¶ 16–17. And some drivers may try to improve their earnings by avoiding 

areas where the passengers typically provide smaller tips. See id. at 12 ¶ 25. 

 The City argues that lessee-drivers such as Callahan may also increase 

profits by minimizing expenses. The facts do indicate that this is true—at least to a 

certain extent. It was Callahan herself, for example, who selected the taxicab 

affiliate(s) from whom she would lease her cabs. See [122] at 14 ¶ 41. And although 

the City sets the maximum lease rate that an affiliate may charge for the use of its 

medallions, see MCC § 9-112-230, Callahan points to no evidence that the City has 

set a minimum such rate. The City, in other words, did not prevent Callahan from 

attempting to negotiate a lease rate lower than those set forth in the Municipal 

Code. See [122] at 14 ¶ 43. (Though, conversely, defendant points to no evidence 

that medallion holders actually offer or agree to rates lower than the maximum 

rates as set by the City.) Expenses may also be lowered by shopping for and 

purchasing gas at lower prices, minimizing the amount of gas used (by, for example, 
44 

decreasing use of air conditioning or accelerating more smoothly), and driving more 

carefully so as to avoid accidents. See id. at 16 ¶¶ 48–49. 

 Thus, even when viewing the evidence in the light most favorable to Callahan 

the facts suggest that there are at least some opportunities for taxicab drivers to 

earn more, or to spend less, based on their managerial skills. Callahan does not 

dispute that such opportunities exist in theory. Rather, she asserts that these 

opportunities are in truth severely limited, and that they therefore permit only 

small variations in profits that drivers actually earn. Callahan, in other words, 

argues that there is no appreciable or meaningful opportunity for profit or loss that 

is truly within the taxicab driver’s control. See [120] at 28. 

 The City limits the opportunity to profit, says Callahan, by setting maximum 

fare rates and imposing a variety of “common carrier”-type obligations that 

circumscribe a driver’s ability to actually use managerial skills. See id. at 26. 

Callahan identifies only two of the “common carrier” duties that she claims are 

unduly restrictive—the obligation to “return lost property left in [drivers’] cabs,” 

and the obligation to service “underserved” areas, id.—without explaining how 

fulfilling these obligations necessarily limits drivers’ abilities to increase their 

earnings based on skill. See Judge v. Quinn, 612 F.3d 537, 557 (7th Cir. 2010) 

(“[P]erfunctory and undeveloped arguments . . . are waived.”) (citation omitted). And 

while the City does prescribe the maximum fares that drivers may charge their 

passengers, Callahan admits that drivers may earn money not just through fares, 

but through tips, and that some drivers earn larger tips because they do certain 
45 

things that are within their control, such as providing entertainment in their cabs. 

The relevant question is not whether taxicab drivers can increase (or decrease) their 

profits through how they approach their driving—since Callahan essentially 

concedes that they may—but by how much (and, if the answer is “not much,” 

whether it is the City that prevents drivers from profiting through skill). 

 According to Callahan, taxicab drivers operating under the City’s rules and 

regulations (as all cab drivers in Chicago must) are simply unable to increase their 

profits to any significant extent. In support of this contention, she offers a report 

prepared by Dr. Robert Bruno. See [120] at 26–28. Dr. Bruno explains that he 

performed an analysis of fares earned from November 2013 through January 2014 

by 689 taxicab drivers working for three affiliates in Chicago. See [121-12] at 24. 

Based on these records, Dr. Bruno calculated average fares earned per hour, as well 

as average charges22 earned per hour, and concluded that there was “minimal 

variability” among average earnings. Id. 

 The City argues that Dr. Bruno’s conclusions are inadmissible because the 

methodology he used to reach them was flawed. See [144] at 17–19. Some of the 

City’s criticisms are about Dr. Bruno’s data, not his methodology. The reliability of 

an expert’s testimony is “primarily a question of the validity of the methodology 

employed by [that expert], not the quality of the data used in applying the 

methodology.” Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 806 (7th Cir. 2013). 

In assessing the admissibility of an expert’s opinion, a court should not “unduly 

 

22 Dr. Bruno does not explain what he means by “charges.” 
46 

scrutinize[] the quality of the expert’s data and conclusions.” Id. (citation omitted). 

To the extent the data used by Dr. Bruno did not include tips earned by the 

participating taxicab drivers, those data are questionable. Tips are part of drivers’ 

earnings (as Dr. Bruno admits, see [148] at 16 ¶ 32); thus, if the data Dr. Bruno 

analyzed did not include such tips, then Dr. Bruno assessed only a portion of what 

the drivers actually earned (assuming, that is, that at least some of the 

participating drivers did earn tips). That the data used by Dr. Bruno may not have 

included tips is especially troubling because obtaining larger tips is one way in 

which taxicab drivers may augment their incomes through individual skill—the 

very factor Dr. Bruno’s report is supposed to enlighten. But this is a data-quality 

issue, not one of methodology.23 Similarly, that Dr. Bruno did not take into account 

any breaks from driving that the drivers may have taken—such as breaks for 

meals, or to use the bathroom—is a problem with his data, not his methodology. 

 Dr. Bruno “cleaned” the data set before using it—first by eliminating records 

whose hours were listed as greater than 14 hours per shift (since driver shifts were 

at that time limited to 12 hours, and a 14-hour cutoff allowed for a “reasonable 

delay or time overage”); and, second, by removing records of drivers who worked 

fewer than 20 hours over 3 months. See [121-12] at 24. This is indeed a question of 

methodology, but it is not clear how removing these records from the original data 

set would necessarily alter the results in Callahan’s favor. What is relevant to 

Callahan’s position at summary judgment are Dr. Bruno’s calculations of average 

 

23 Dr. Bruno used data he received from another source, see [121-12] at 24, and it is 

unknown whether those data included tips, see [148] at 15–16 ¶ 32. 
47 

fares and charges earned per hour, and the variability of those earnings. There is no 

evidence suggesting that drivers who claim to have worked more than 14 hours per 

shift likely earned more or less per hour than those who worked fewer than 14 

hours per shift Nor is there evidence that drivers who worked fewer than 20 hours 

over the three-month study period are an important subset of the data originally 

obtained. Dr. Bruno’s calculations concern amounts earned by drivers per hour. 

Eliminating the extremes of a data set before analyzing that set is not an 

uncommon practice in statistical or scientific analyses, and there is no indication 

that the practice was problematic here. 

 The City also takes issue with another aspect of Dr. Bruno’s methodology: he 

“artificially homogenize[d]” the data points, says the City, thereby concealing the 

true distribution or spread of drivers’ incomes, and reducing their calculated 

variability. See [144] at 18–19. This argument, too, is properly related to the 

methodology that Dr. Bruno employed in his analysis, and so bears on the 

admissibility of Dr. Bruno’s report. Although Dr. Bruno could (and should) have 

done a more thorough job of explaining in his report how he performed his 

calculations—and thus what his methodologies truly entailed—at least some of his 

conclusions are admissible. 

 Dr. Bruno states that from the 689 driver records left in the data set (after 

“cleaning”), he calculated: (1) the average fares and average charges per hour, first 

for each of the three taxicab affiliates, then in total; and (2) the average fare 

variation and average charge variation, again by taxicab affiliate and then in total. 
48 

See [121-12] at 24–25. On the second page of his report, he includes the following 

summary24:

Affiliate Drivers Avg Fare/Hour Avg Fare 

Variation Avg Charge/Hour Avg Charge Variation 

Chicago Taxi 

Medallion 5 $ 16.60 $ (0.35) $ 18.54 $ (0.72) 

VTS Globe 

Taxi 271 $ 16.26 $ (0.69) $ 18.40 $ (0.86) 

VTS Medallion 

Leasing 413 $ 17.46 $ 0.51 $ 19.90 $ 0.64 

All Drivers 689 $ 16.95 $ 0.34 $19.26 $ 0.34 

Id. at 25. As the City points out, comparing the average fare variation between 

affiliates, or between one affiliate and all drivers, does not reveal much, if anything, 

about whether drivers have an opportunity to earn money through skill, because 

such a comparison hides the individualized data that it otherwise purports to 

explain. 

 As depicted in the chart above, Dr. Bruno first calculated the average fare 

(and charge) per hour for each of the three taxicab affiliations whose drivers 

participated in the study. He also calculated the average fare (and charge) across 

“all drivers.”25 Dr. Bruno then determined the “average variation in fare per hour 

and charge per hour,” first for each of the three affiliations, then in total. 

 To obtain the average variations per hour for each taxicab affiliation, Dr. 

Bruno subtracted the average per hour for that affiliation from the total average for 

 

24 The table included here is a representation of the chart included in Dr. Bruno’s report. 

The formatting between the two differs slightly, but the contents are the same. 

25 To perform the latter calculation, Dr. Bruno added up the total amounts in fares and 

charges collected by all participating drivers, and divided by the total number of hours 

those drivers worked. See Figure 1 of Bruno Report, [121-12] at 24. 
49 

all drivers.26 This approach, without further explanation, is rather strange, and the 

results it yields are not informative. By subtracting one average (fare/charge earned 

per hour by all drivers) from another (fare/charge earned per hour by drivers in a 

given affiliation), Dr. Bruno has over-normalized the data. 

 To illustrate using a simpler example, suppose that there were two taxicab 

affiliations (A and B), each with two drivers participating in the study. The drivers 

at Affiliation A earned $8.00 and $12.00 in fares per hour, respectively. Thus, the 

average per-hour fare at Affiliation A was $10.00. The drivers at Affiliation B, 

however, earned $6.00 per hour and $14.00 per hour, respectively. The average fare 

per hour at Affiliation B was therefore also $10.00. The average fare for all four 

drivers, irrespective of affiliation, was (again) $10.00 per hour.27 Dr. Bruno’s 

method would subtract the per-hour fare average for all drivers ($10.00) from the 

per-hour fare average for the drivers at Affiliation A (also $10.00), and conclude 

that Affiliation A drivers on average do not vary from all drivers. If the same 

approach is followed for Affiliation B, the same result is obtained: [average fare per 

hour for Affiliation B ($10.00)] less [average fare per hour for all drivers ($10.00)] is 

zero. But these results are quite misleading, because we know from the data for 

Affiliation A that, on average, drivers there earned plus or minus two dollars from 

the per-hour average for all drivers. The “zero” variation result is even more off base 

 

26 Thus, for example, Dr. Bruno obtained “$ (0.35)” as the average fare variation for drivers 

in the Chicago Taxi Medallion affiliation: $16.60 (the average fare per hour for that 

affiliation) less $16.95 (the average fare per hour for all drivers in the study) is minus 35 

cents. See [121-12] at 25. 

27 [$8.00 + $12.00 + $6.00 + $14.00] / 4 = $10.00. 
50 

for Affiliation B, where the drivers earned plus or minus four dollars from the perhour average for all drivers. To claim that there is no variability would be incorrect, 

but that would be the outcome of Dr. Bruno’s method. 

 By comparing “averages to averages,” Dr. Bruno may have eliminated the 

spread or distribution in data points—thereby improperly narrowing the variability 

in results, as the City claims. The methodology Dr. Bruno used to calculate the 

affiliation-specific variations in fares (and charges) therefore was not reliable, and 

on that front, his report is not admissible under Federal Rule of Evidence 702. But 

the affiliation-specific calculations are not the only ones concerning income 

variability that Dr. Bruno performed. He also calculated the average variation in 

fare (or charge) per hour from the per-hour averages (fare and charge) for all 

drivers. See Figure 2 of Bruno Report, [121-12] at 25 (fourth row). Here, Dr. Bruno 

determined that 689 drivers earned on average $16.95 in fares per hour, and that 

the average variation from this number—i.e., the average difference between this 

number and what the 689 drivers actually collected in fares—was $0.34.28 This is 

 

28 Dr. Bruno does not explain exactly how he arrived at this figure. It is therefore possible 

that Dr. Bruno merely averaged the affiliation-specific variabilities that he had already 

calculated (e.g., $(0.35), $(0.69), and $0.51 for fares earned per hour, see [121-12] at 25) in 

order to obtain an overall average. Such an approach would be inappropriate, as it would 

over-normalize the data as discussed above. However, there is no suggestion that Dr. Bruno 

followed such a method here. Merely averaging the affiliation-specific variabilities yields an 

overall average fare variation (per hour) of $0.52. ( [ |$(0.35) | + |$(0.69) | + $0.51] / 3 

= $0.52.) But Dr. Bruno obtained $0.34. See id. Similarly, merely averaging the affiliationspecific variabilities for charges earned (per hour) yields $0.74 ( [|$(0.72) | + |$(0.86) | + 

$0.64 ] / 3 = $0.74), while Dr. Bruno again calculated $0.34. See id. Nor does it appear that 

Dr. Bruno calculated weighted averages using the affiliation-specific variabilities, as those 

would come out to $0.58 and $0.73 for fares and charges, respectively ( [|$(0.35) x 5| + 

|$(0.69 x 271| + ($0.51 x 413) ] / 689 = $0.58; and [|$(0.72) x 5| + |$(0.86) x 271| + ($0.64 

x 413) ] / 689 = $0.73.) Thus, I may reasonably assume from Dr. Bruno’s report that he 
51 

not an average-to-average comparison that inappropriately strips away data-point 

distribution. To the contrary, this type of calculation is informative because it yields 

at least a rough estimate of where drivers often fell on the earnings-per-hour 

spectrum. The example from above is helpful in illustrating why this is so. Recall 

that, in the hypothetical scenario just discussed, the drivers at Affiliations A and B 

earned an average of $10.00 per hour. The average variation in fares earned per 

hour, irrespective of affiliation, was $3.00.29 This $3.00 figure is much closer to the 

actual variations in fares earned per hour, which ranged from $2.00 to $4.00 per 

hour. This calculated average is therefore a much better representation of data 

distribution and, consequently, variability in earnings, than are the affiliationspecific calculations addressed previously. 

 The following of Dr. Bruno’s results are therefore admissible under Rule 702: 

(1) that among the 689 drivers whose data were analyzed, drivers earned on 

average $16.95 in fares per hour; (2) that the fares actually earned (per hour) by 

those drivers were, on average, within 34 cents of $16.95; (3) that those same 

drivers earned an average of $19.26 in charges per hour; and (4) that the charges 

actually earned (per hour) were, on average, within 34 cents of $19.26. See Figure 2 

of Bruno Report, [121-12] at 25 (fourth row). These calculations reasonably support 

 

calculated the average variation in fare (or charge) per hour for all drivers by: (1) finding 

the difference for each of the 689 drivers between what they actually earned per hour and 

the average earned per hour for all drivers ($16.95 in fares, $19.26 in charges); (2) adding 

together each of those differences (for fares, then for charges); and (3) dividing each of those 

totals by the number of total records analyzed (689). 

29 [ |$6.00 – $10.00| + |$8.00 – $10.00| + |$12.00 – $10.00| + |$14.00 – $10.00| ] / 4 = 

[ $4.00 + $2.00 + $2.00 + $4.00] / 4 = $3.00. 
52 

Dr. Bruno’s conclusion that variability in earnings among taxicab drivers was 

small, at least as compared to what those drivers earned (per hour) on average. See 

id.30 

 Thus, although the data used by Dr. Bruno did not account for all tips earned 

by the participating drivers, or take into account breaks taken by those drivers (e.g., 

time spent away from the cab during a given lease), part of his conclusion is 

admissible, and at this stage, the record permits an inference in plaintiff’s favor 

that there is in fact minimal variability among taxi drivers’ incomes. Minimal 

variability, in turn, tends to show that there is little a driver can do to change her 

income through managerial skill. 

 But an inability to increase profits through skill does not alone establish that 

the second Lauritzen factor weighs in plaintiff’s favor. This factor suggests that 

Callahan is economically dependent on the City only if a connection is shown 

between the inability to increase profits on the one hand, and the City’s own 

conduct (i.e., its rules and regulations) on the other. Dr. Bruno’s report makes no 

such connection. In the end, then, for all the superficial appeal of data suggesting 

lack of variation, Dr. Bruno sheds almost no light on the question at hand. It is 

 

30 The parties also dispute the admissibility of another of Dr. Bruno’s conclusions—that 

taxicab drivers on average earn less than the minimum wage once expenses are also taken 

in to account, see Figure 3 of Bruno Report, [121-12] at 25. In calculating these wage 

figures, Dr. Bruno used only a single number to represent what taxicab drivers on average 

spent on expenses, obtained from a different study conducted during a different time 

period. See id. Dr. Bruno did not separately measure or analyze the extent to which drivers 

may decrease their expenses (or not) based on managerial skill. This section of Dr. Bruno’s 

report therefore adds no information to that already provided in his conclusions concerning 

income variability. Consequently, I do not address it here. 
53 

undisputed that at least some opportunities to increase profits through skill do 

exist—and there is no evidence suggesting that the drivers whose records were 

analyzed by Dr. Bruno attempted to take advantage of any such opportunities (or if 

so, to what extent).31 On balance, this factor weighs in favor of the City; cabdrivers 

have an ability to influence their profits or losses through skill that is independent 

of the City’s regulations. 

 Also supporting the City’s position is the final Lauritzen factor—the extent to 

which the service provided is “an integral part of the alleged employer’s business.” 

835 F.2d at 1535. This factor necessarily cuts in favor of the City because, as 

discussed previously, the service that Callahan provides is transportation by 

taxicab, and that is not the City’s business. Callahan’s services may be integral to 

someone’s business (perhaps her own, as a self-employed cabdriver), but that 

business is not the City’s. 

c. The “Economic Reality” of Callahan’s Work 

 While some Lauritzen factors suggest that Callahan is an employee of the 

City under the FLSA, others suggest that she is not. Ultimately, however, these 

criteria are merely aids or tools in gauging the economic reality of the situation. See 

835 F.2d at 1538 (quoting Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1311–12 (5th 

Cir. 1976)). Employees (for FLSA purposes) are those who, “as a matter of economic 

 

31 Dr. Bruno’s study did not measure what the participating taxicab drivers were actually 

doing in relation to their driving. The study considered only the “time in the car.” See [148] 

at 16 ¶ 33. 
54 

reality[,] are dependent upon the business to which they render service.” Id. at 1534 

(quoting Mednick, 508 F.2d at 299). 

 Callahan argues that the City must be her employer since, according to 

Callahan, the City “prescribes her compensation.” See [120] at 16. To establish that 

the City does this, Callahan turns to an Illinois statute providing that 

municipalities “may license, tax, and regulate . . . cabmen . . . and may prescribe 

their compensation.” See id. at 18–19 (quoting 65 ILCS 5/11-42-6). This provision 

was at issue in Campbell v. City of Chicago, 823 F.2d 1182 (7th Cir. 1987). 

 In Campbell, a group of Chicago taxicab drivers brought a class action 

against the City under the Sherman Act, alleging that the City’s ordinance 

concerning the manner in which individuals could acquire and retain taxicab 

licenses created a barrier to entering the taxicab market, and thus violated federal 

antitrust laws. See 823 F.2d at 1183. To establish its immunity from liability, the 

City argued that it fell within a narrow exception to the Sherman Act as articulated 

in Parker v. Brown, 317 U.S. 341 (1943). See id. at 1183–84. This exception 

exempted municipalities from liability under the Act if their conduct had been 

authorized by the state legislature, and if anticompetitive effects were a foreseeable 

result of that authorization. See id. at 1184. In Campbell, the City argued—and the 

court of appeals agreed—that Illinois had authorized the City to regulate the 

number of taxicab licenses (and the conditions under which such licenses are 

issued) because the State had granted the City the power to “prescribe [the] 

compensation” of cab drivers under 65 ILCS 5/11-42-6. See 823 F.2d at 1183–85. 
55 

The court noted that in granting the City the power to prescribe drivers’ 

compensation, the Illinois General Assembly “must have foreseen regulations 

concerning the number of licenses” in the City, since, “if the City could . . . regulate 

the number of cabs, then it could be assured that with the fares it set, and the 

number of cabs it permitted, all drivers could make a profit.” Id. at 1185. 

 The City contends in the present litigation that while it may prescribe taxi 

drivers’ compensation under the statute discussed in Campbell, the City need not 

(and does not) do so in fact. See [144] at 28–29 (stating that the City “does not 

determine Callahan’s profits and does not pay [her]”). Callahan takes issue with 

what she characterizes as the City’s about-face from its previous position in 

Campbell. See [147] at 13. To the extent Callahan asserts a judicial-estoppel 

argument, however, that argument has been waived.32 Moreover, that the City 

enjoys an antitrust exemption because of its state-awarded statutory power over the 

taxicab industry does not mean that the City has become Callahan’s employer 

under the FLSA. 

 The City does not prescribe Callahan’s compensation in the traditional sense; 

it does not, in other words, dictate the precise amount of money that Callahan will 

make each time she drives a taxicab for hire. Callahan does not dispute this, but 

argues that the City prescribes her compensation in effect by: limiting what she 

 

32 Callahan suggests that the City should be judicially estopped (from arguing that it does 

not prescribe taxicab drivers’ compensation) for the first time in her reply brief. See [147] at 

13. Arguments raised for the first time in a reply brief are waived. See Padula v. Leimbach, 

656 F.3d 595, 605 (7th Cir. 2011) (citing United States v. Diaz, 533 F.3d 574, 577 (7th Cir. 

2008)). Indeed, Callahan merely alluded to judicial estoppel in her reply; it was not until 

oral argument that Callahan affirmatively made the estoppel argument. That was too late. 
56 

may charge her passengers as metered fares; requiring that she pay certain taxes 

and fees; setting the maximum lease rates that medallion owners may charge 

lessee-drivers to use their licensed cabs; and limiting the overall supply of taxicab 

drivers by controlling the number of public chauffeur’s licenses it issues. See [120] 

at 20. 

 Setting fare rates and controlling the number of licensed cabs is indeed 

regulating the compensation of cab drivers within the meaning of Campbell. See 823 

F.2d at 1185. And, by regulating in this way, it may be that the City limits what 

taxicab drivers can take home in profits. Taxicab drivers may thus be economically 

dependent on the City, as plaintiff urges. See [120] at 20. But the critical question is 

not whether these drivers are “economically dependent” on the City, period. Every 

regulated industry is in a sense economically dependent on its regulator. The 

question that must be answered is whether taxicab drivers are economically 

dependent on the City’s business. See Lauritzen, 835 F.2d at 1538 (“[T]he final and 

determinative question [is] whether . . . the personnel are so dependent upon the 

business with which they are connected that they come within the protection of the 

FLSA.” (quoting Pilgrim Equipment, 527 F.2d at 1311–12)) (emphasis added). 

 The City has a great deal of power over the taxicab industry, and it exercises 

that power through regulation. But the City’s regulation did not assume the 

business of providing private cars for hire. The reality of the situation presented 

here is that Callahan must do certain things (or avoid doing certain things) as a 

condition of using the City’s streets to conduct a business. The evidence, even when 
57 

viewed in the light most favorable to Callahan, indicates that that business is hers, 

not the City’s. Callahan is not economically dependent on the City’s business, and 

so is not, as a matter of law, the City’s employee for purposes of the FLSA. Because 

the City did not “employ” Callahan within the meaning of the FLSA, it does not owe 

her minimum wages as set forth in that Act. 

 The City’s motion for summary judgment on Count V of plaintiff’s amended 

complaint is therefore granted. Callahan’s cross-motion on the same claim is 

therefore denied. 

B. Illinois Minimum Wage Law (Count IV) 

 In her amended complaint, Callahan also asserts a claim against the City 

under the Illinois Minimum Wage law, 820 ILCS 105/1 et seq. See [33] at 12–13. 

Like the FLSA, the IMWL requires that employers pay their employees a minimum 

amount per hour—as of July 2010, $8.25 per hour. See 820 ILCS 105/4(a)(1). The 

Illinois statute also uses similar definitions—and, consequently, similarly circular 

definitions—of “employer” and “employee” as are found in the FLSA. See id. 105/3(c) 

(defining “employer” as “any individual [or] governmental . . . body . . . acting 

directly or indirectly in the interest of an employer in relation to an employee”); id.

105/3(d) (defining “employee” as “any individual permitted to work by an employer 

in an occupation”). The Illinois Administrative Code further underscores the 

comparability of the state and federal labor statutes, clarifying that “employee” 

under the IMWL, just as under the FLSA, means “any individual permitted or 

suffered to work by an employer,” ILL. ADMIN. CODE tit. 56, § 210.110. And to 
58 

determine whether an individual has been permitted or suffered to work within the 

meaning of the IMWL, the Code states that an analysis resembling the Lauritzen

“economic reality” test should be employed. See id. (describing six factors to be 

considered, including: (1) degree of control by the alleged employer; (2) the 

opportunity for profit and loss; (3) the extent of the relative investments; (4) the 

skill required; (5) the permanency of the relationship; and (6) the extent to which 

the services rendered are an integral part of the alleged employer’s business). 

 Because the IMWL parallels the FLSA so closely, courts have generally 

interpreted their provisions to be coextensive, and so have generally applied the 

same analysis to both. Cf., e.g., Condo v. Sysco Corp., 1 F.3d 599, 601 n. 3 (7th Cir. 

1993) (discussing overtime-pay provisions); Haynes v. Tru-Green Corp., 154 

Ill.App.3d 967, 976 (1987) (same). The Illinois Administrative Code, too, states that 

for guidance in interpreting the IMWL, federal regulations (for the FLSA) may be 

used. See ILL. ADMIN. CODE tit. 56, § 210.120. Thus, for the same reasons that 

Callahan’s FLSA claim fails, her IMWL claim also fails. 

 The City’s motion for summary judgment on Count IV of plaintiff’s amended 

complaint is granted. Callahan’s cross-motion on Count IV is denied. 

C. Proof of Callahan’s Damages 

 Defendant also moves for summary judgment on alternative grounds—i.e., 

that even if the City of Chicago is Callahan’s employer within the meaning of the 

FLSA (and thus the IMWL), Callahan’s claims still fail because a jury could not 

reasonably conclude that she did not earn the minimum wage, under either statute, 
59 

during the relevant time period (January 2009 through August 2011). See [93] at 

29–31. 

 Relying on Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), 

Callahan asserts that, to prove that she earned less than the applicable minimum 

wage, she need only provide enough evidence “to support a ‘just and reasonable 

inference’ that she performed work for which she did not receive” proper payment. 

[120] at 34 (quoting Anderson, 328 U.S. at 687–88). Anderson’s burden-shifting 

standard applies when an employer is on notice that it is subject to the FLSA’s 

record-keeping requirements, and, more importantly, after a plaintiff has 

established liability. Neither circumstance is present here, and Anderson’s 

exception to the default burden of proof therefore does not apply. 

 In Anderson, the employer had not kept adequate wage and hour records as 

required by Section 11(c) of the FLSA33, and the Court declined to penalize the 

plaintiffs for their employer’s shortcoming. “[W]here the employer’s records are 

inaccurate or inadequate,” the Court opined, an employee has carried out her 

burden if she proves: (1) that she “has in fact performed work for which [she] was 

improperly compensated”; and (2) if [she] produces sufficient evidence to show the 

 

33 Section 11(c) of the Act requires that employers “make, keep, and preserve such records 

of the persons employed . . . and of the wages, hours, and other conditions and practices of 

employment.” 29 U.S.C. § 211(c). 
60 

amount and extent of that work as a matter of just and reasonable inference.” Id. at 

687.34

 But as the City points out, Anderson addressed a situation in which it was 

quite clear that the defendant was the plaintiffs’ employer. The opposite is true 

here. Whether the City is Callahan’s employer is not merely a passing inquiry; it is 

the central focus of the parties’ motions for summary judgment. Callahan asserts 

that whether the City considered itself to be Callahan’s employer is irrelevant, since 

employers are not entitled to enjoy the fruits of having misclassified their 

employees as independent contractors. See [120] at 35. But this case is not one of 

simple misclassification as described in Lauritzen. As explained above, the 

distinction here is not between “employee” and “independent contractor.” While one 

might plausibly argue that business owners or operators who “misclassify” their 

employees as contractors at least know that they have hired workers—and, 

therefore, have sufficient notice that, as the hiring party, they might as a matter of 

law be on the hook to keep proper records under Section 11(c) of the FLSA—the 

same is not true of the City. The City did not have adequate notice that it might be 

held to the record-keeping requirements of the FLSA because it one day might be 

found to “employ” the cabdrivers it licenses. 

 

34 Once the employee has produced enough evidence to show the amount of uncompensated 

work as a matter of just and reasonable inference, the burden then shifts to the employer 

“to come forward with evidence of the precise amount of work performed or with evidence to 

negative the reasonableness of the inference to be drawn from the employee’s evidence.” 

Anderson, 328 U.S. at 687–88. 
61 

 Moreover, the just-and-reasonable-inference standard was conceived to 

permit workers to recover damages under the FLSA (even where the worker himself 

had not kept detailed records of how much overtime he had worked) where two 

criteria were satisfied: first, that the employer had not kept such records (or had 

done so poorly), see 328 U.S. at 687, as just discussed; but second—and more 

importantly here—that the worker had already proven a violation of the FLSA in 

the first instance, see id. at 688. The employee, in other words, must have already 

shown that she had “performed work [but had] not been paid in accordance with the 

statute,” id. In articulating the just-and-reasonable-inference standard, the Court 

was quite careful to explain that this relaxed standard was appropriate only 

because the FLSA violation itself had already been established. Otherwise, said the 

Court, such a standard would run afoul of the rule “that precludes the recovery of 

uncertain and speculative damages.” Id. The existence of damages is certain where 

the underlying violation has already been demonstrated, and all that is left is to 

determine is the extent or amount of that damage. See id. Here, however, the two 

issues are intertwined: Callahan endeavors to prove that a violation occurred in the 

first instance—i.e., that she was not paid the minimum wage during a certain time 

period—by demonstrating the extent to which she was underpaid. Adjusting 

Callahan’s burden of proof would not be permissible here in the same way that it 

was acceptable in Anderson. 

 In any event, it would not be just and reasonable to infer from the meager 

evidence Callahan musters that she was paid less than the applicable minimum 
62 

wage. The evidence on which Callahan relies includes: (1) Callahan’s sworn 

declaration concerning what she earned when working as a full-time taxicab 

driver35; (2) her recently amended federal tax returns for those years; (3) lease and 

business records that show “times worked and income earned”; (4) credit-card 

payment reports; and (5) three third-party studies concluding that taxicab drivers 

generally do not earn either the federal- or state-required minimum wage. See [120] 

at 33–34. 

1. Evidence Concerning Income Earned 

 To establish the amounts she earned as a cab driver from January 2009 

through August 2011, Callahan first turns to her own declaration, in which she 

explains how she estimated her earnings during that time period. Callahan says 

that she was unable to save money during that time, so she assumed that her 

income from taxicab driving—or “actual pay,” as she calls it—was at most equal to 

her total expenses for each of the three years in question. See [121-26] at 4 ¶ 20. 

Callahan maintains that she had two types of expenses: personal or “household” 

expenses (such as rent, utilities, cell-phone bills, and the like), and taxi-related 

expenses (such as the cost of gas and taxicab leases). See id. She had kept some of 

her (unidentified) personal bills, and she looked at those in order to estimate her 

 

35 Callahan also purports to rely on her deposition testimony. See [120] at 33. However, she 

neglects to identify which portions of her deposition she maintains are relevant. In her 

declaration, [121-26], she states that she reviewed certain pages of her deposition transcript 

in preparing to execute the declaration, and that she believes that the declaration is 

consistent with that deposition testimony, see id. at 2 ¶ 7. I therefore assume that the 

deposition testimony to which Callahan refers in her summary-judgment brief concerns the 

same information as addressed in her declaration. 
63 

household expenses. See id. She estimated her taxicab-related expenses based on 

her personal knowledge and experience as a taxi driver. See id. The results 

Callahan obtained for her “actual pay” are presented in a spreadsheet attached as 

Exhibit F to her declaration. See id. at 16–20. 

 Sworn declarations or affidavits may be used in support of a party’s motion 

for summary judgment (or in opposition to such a motion), but the statements 

therein must meet certain requirements: they must be made on personal 

knowledge, and set out facts that would be admissible in evidence, see Fed. R. Civ. 

P. 56(c)(4). Callahan’s declaration—at least insofar as the declaration pertains to 

her earnings during the relevant time frame (as summarized in Exhibit F thereto)—

does not meet this standard. 

 Callahan states in her declaration that, to her recollection, she earned only as 

much money as she spent in 2009, 2010, and 2011. The amount of money that 

Callahan spent in relation to how much she earned is a fact within her personal 

knowledge, and thus a fact to which she may properly testify. But to arrive at how 

much she spent (and, thus, how much she earned), Callahan states that she 

“reverse engineered” that figure by looking at how much she spent on household 

expenses, and by estimating her taxicab-related expenses. See [121-26] at 4 ¶ 20. 

These statements are more problematic. 

 Callahan first maintains that she determined her personal expenditures by 

looking at her household expenses such as rent, utilities, cell phone bills, and creditcard bills, and then “total[ing] what [she] would have spent.” Id. She also states in 
64 

her declaration that she has “many of the[] receipts” on which she relied, as well as 

bank statements. Id. Though she may have kept such records, she included none in 

the summary-judgment record. Their contents are a mystery. Moreover, Callahan 

testified at her deposition that while she had kept some personal household bills, 

she had not kept all of them. See [122] at 17 ¶ 54; November 18, 2013 Deposition of 

Melissa Jean Callahan, [92-1] at 12–13. Thus, to determine the missing amounts, 

she simply made rough estimates by extrapolating from whatever numbers she did 

have. See id. Callahan also estimated her taxicab-related expenses (gas and lease 

agreements), but those estimates were not based on any records at all; they were 

based merely on Callahan’s purported “personal knowledge and experience as a taxi 

driver,” [121-26] at 4 ¶ 20. 

 These statements are insufficient to establish that Callahan has adequate 

personal knowledge of her actual expenses (and thus actual earnings) in 2009, 2010, 

and 2011. She has provided only conclusory assertions of what she believes she may 

have spent, but no information from which to infer that those beliefs are reasonable 

or justifiable. For example, Callahan offers no information regarding the personal 

bills she claims she did keep and rely on (how many she kept, what time period they 

were from, or why those bills are representative), or any explanation of why her 

estimations based on those bills are plausible. Callahan may testify to what she 

knows or recalls, but she must first lay an adequate foundation for that knowledge 

or recollection. See Fed. R. Evid. 602 (“A witness may testify to a matter only if 

evidence is introduced sufficient to support a finding that the witness has personal 
65 

knowledge of the matter.”). Absent such a foundation, Callahan offers only 

speculation as to what she actually earned. And mere speculation is not enough to 

satisfy the personal-knowledge requirement for affidavits. See Markel v. Bd. of 

Regents of Univ. of Wis. Sys., 276 F.3d 906, 912 (7th Cir. 2002) (“[A] party to a 

lawsuit cannot ward off summary judgment with an affidavit . . . based on . . . 

conjecture.” (quoting Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir. 

1989))); cf. Abioye v. Sundstrand Corp., 164 F.3d 364, 368 (7th Cir. 1998) 

(classifying statements as “merely conjecture” because they lacked particularity as 

to what the affiants actually knew). Consequently, Callahan’s assertions concerning 

what she earned as “actual pay” in 2009, 2010, and 2011—as presented in the 

summary spreadsheet attached to her declaration, see Exhibit F to Callahan 

Declaration, [121-26] at 16–20—are inadmissible.36 

 To corroborate Callahan’s estimation or reconstruction of what she (allegedly) 

earned in 2009, 2010, and 2011, Callahan relies on her federal tax returns for those 

years. See [120] at 34 (citing Plaintiff’s Local Rule 56.1(b)(3) Statement, [122] at 23 

 

36 Callahan argues that the statements in her declaration are adequate to establish her 

“actual pay” because the just-and-reasonable-inference standard permits her to reconstruct 

such numbers from memory. See [120] at 33 n. 5 (citing Espenscheid v. DirectSat USA, 

LLC, 705 F.3d 770, 775 (7th Cir. 2013)). In Espenschied, the Seventh Circuit did observe 

that reconstruction by memory may “enable[] the trier of fact to draw a just and reasonable 

inference” of underpayment, 705 F.3d at 775 (internal quotation marks omitted)—at least 

as far as unreported work time is concerned, see id. As discussed above, however, I am not 

convinced that the same principles apply to situations such as this one, where the amount 

of uncompensated work is being used to prove the underlying violation. In any event, even 

assuming that Callahan may properly reconstruct her expenses (and thus earnings) by 

memory in order to demonstrate a minimum-wage violation, Callahan has pointed to no 

authority suggesting that she may offer such memories without first laying a foundation as 

to their basis. The personal-knowledge requirement applies to statements of memory just 

as it does to other forms of testimony, and Callahan has not satisfied that requirement 

here. 
66 

¶ 9). Callahan in fact submitted two tax returns for each of these three years—one 

original, and one amended, see [95] at 14 ¶ 59. It is to the amended returns that she 

now turns for support. But this evidence, too, fails to aid Callahan in carrying her 

burden of proof. The firm that prepared Callahan’s amended returns did not rely on 

any documents concerning her income, since Callahan did not provide any. See [95] 

at 14–16, ¶¶ 60, 62, 64; [122] at 18–19, ¶¶ 60, 62, 64. Rather, it was Callahan 

herself who calculated the figures reported in the returns, and she performed those 

calculations using the same approach that she used to estimate her “actual pay”: 

she “reconstructed” her earnings by reverse-engineering them from her estimated 

total expenditures during those years, see id.; [141] at 5 ¶ 9. The statements in 

Callahan’s amended tax returns therefore suffer from the same foundational defects 

as do her earlier-described statements concerning her “actual pay.” The former, 

consequently, cannot corroborate the latter. 

 Callahan also relies on what she refers to as “business records showing . . . 

income earned.” [120] at 34 (citing [122] at 22 ¶ 4). Callahan claims that these 

records consist of notes that she took regarding her lease- and gas-related expenses, 

as well as her income from taxicab driving, in seven months from 2009 (February, 

May, June, July, August, November, and December) and in two months from 2010 

(January and February). See [122] at 22 ¶ 4 (citing Exhibit A to Callahan 

Declaration, [121-26] at 6–9). These records are hearsay: they are statements made 

outside of proceedings for this litigation, offered to establish the truth of the matter 

asserted—Callahan’s earnings as a taxicab driver in certain years. See Fed. R. Evid. 
67 

801(c). Callahan attempts to overcome this problem by referring to the notes as 

“business records” made contemporaneously with the events described therein 

(dollars earned and spent). See Callahan Declaration, [121-26] at 2 ¶ 8 (stating that 

she kept the records “in the course of driving a taxi . . . in 2009 and 2010”); see also

Plaintiff’s Local Rule 56.1(b)(3) Statement, [122] at 22 ¶ 4 (describing 

“contemporaneous notes”). If Callahan did indeed keep these records as a matter of 

regular practice while driving a taxicab for hire—and if she did indeed create the 

records at or near in time to the events she describes in those records—the 

“business record” exception to the hearsay rule could apply. See Fed. R. Evid. 

803(6). 

 But there is no suggestion that Callahan kept these records as a matter of 

regular business practice. To the contrary, she kept the notes for only 9 months out 

of a collective 24 in 2009 and 2010, and admits in her declaration that while she 

“intended to keep those records more consistently, [she] did not,” [121-26] at 2 ¶ 8. 

Moreover, Callahan’s description in her declaration (executed in May 2014) of the 

notes as contemporaneous, see id., is contradicted by her earlier deposition 

testimony, in which she stated that she created the notes not while she was driving 

a taxicab in 2009 and 2010, but after she filed her lawsuit against the city (i.e., after 

January 18, 2012, see [1]). See Callahan Deposition, [143-11] at 4.37 Consequently, 

 

37 At her deposition, Callahan was asked when she created the notes. Although she did not 

recall the exact date, she did remember that she had created them after filing the present 

suit: 

Q: When did you create [the handwritten notes]? 
68 

Callahan cannot use the notes to defeat the City’s motion for summary judgment. 

See Harmon v. Gordon, 712 F.3d 1044, 1051–52 (7th Cir. 2013) (“[T]he law of this 

circuit does not permit a party to create an issue of fact by submitting an affidavit 

whose conclusions contradict prior deposition . . . testimony.” (quoting Buckner v. 

Sam’s Club, Inc., 75 F.3d 290, 292 (7th Cir. 1996))).38

 Finally, Callahan relies on credit-card payment reports to establish what she 

earned as a taxicab driver during the relevant period. She asserts that these reports 

were obtained from a taxicab affiliation. See [120] at 34. Even supposing that the 

payment reports are admissible as evidence, they are of little help to Callahan here. 

First, the reports are presented in a format that renders much of the data 

indecipherable. The data appear in a spreadsheet, without column headings, such 

that it remains unclear what many of the columns actually represent. See [121-25]. 

Some of the columns are truncated so that many of the numbers in those columns 

are cut off or invisible. See id. The only entries whose meaning is clear are dates 

 

A: I don’t recall. 

Q: More or less than a year ago? 

A: I don’t recall the exact date. 

Q: Well, how about before or after you first filed this lawsuit? 

A: After. 

[143-11] at 4. 

38 Even if Callahan’s notes were admissible as evidence, that evidence still would not be 

enough to draw a just and reasonable inference that Callahan did not earn the minimum 

wage, as explained below in Part III.C.2 of this opinion. 
69 

(e.g., “11/27/2011”) and method of payment (e.g., “Visa”). But these entries do not 

establish what Callahan earned as a taxicab driver. 

 It is possible that the entries in another of the columns (the ninth from the 

left), whose data are also visible, represents what Callahan earned by credit card on 

those dates. But these data, too, are unhelpful to Callahan. They include only the 

payments that Callahan allegedly received by credit card. Callahan provides no 

evidence that, during the years relevant to this inquiry, she was paid only by credit 

card and never with cash. And if she was paid with at least some cash, then the 

data presented here are incomplete at best. Even more problematic, though, is that 

these entries do not appear to overlap with the relevant time period at all. 

Callahan’s minimum-wage claims are limited to the period beginning in January 

2009 and ending August 2011. See [122] at 1 ¶ 1. The credit-card payments listed 

here are from November 2011 to February 2012. See [121-25]. 

 In short, Callahan has failed to present admissible evidence that her profits 

from driving a taxicab from January 2009 to August 2011 were indeed what she 

now claims they were, and she has no foundation other than speculation to estimate 

her earnings from memory. Callahan has therefore failed to present sufficient proof 

from which I may draw a just and reasonable inference that, during this time 

period, she did not earn at least the minimum wage under either the FLSA or the 

IMWL. But even accepting as true Callahan’s statements concerning her “actual 

pay” in 2009, 2010, and 2011—or, alternatively, accepting as true any other 

statements concerning what Callahan earned as income from taxi driving during 
70 

that time frame—I am still unable to draw a just and reasonable inference that 

Callahan did not earn the minimum wage, because she has not presented sufficient 

evidence of how many hours she actually worked as a taxicab driver within the 

meaning of those statutes. 

2. Evidence Concerning Hours Worked 

 Between January 2009 and August 2011, Callahan did not keep any records 

of the number of hours she drove a taxicab for hire. See [122] at 21 ¶ 73. Nor did she 

keep a calendar or schedule of her driving. See id. She did, however, retain copies of 

nearly all of the taxicab lease agreements she entered in 2010 and 2011, see [141] at 

3 ¶ 5, which she also attached to her declaration, see Exhibit G to Callahan 

Declaration, [121-26] at 21–93. Taxicab leases typically are executed in increments 

of 12 or 24 hours, and Callahan states in her declaration that it was her practice to 

work all hours of a given lease, see id. at 2 ¶¶ 10–11; see also [141] at 3 ¶ 5. Even 

when she took a break to use the washroom or eat a meal, Callahan considers that 

she was working during that time. See [121-26] at 2 ¶ 11. Similarly, if Callahan 

took a nap while waiting in her taxicab in a line at the airport, she counted that 

time as work time. See id. Callahan summarizes the number of hours she claims to 

have worked in 2009, 2010, and 2011, respectively, in the spreadsheet attached as 

Exhibit F to her declaration. See id. at 16–20. 

 There are two problems with Callahan’s summary of how many hours she 

claims to have worked. First, even assuming that the lease-agreement records on 

which Callahan purports to rely are admissible in evidence, those records do not 
71 

adequately support the statements appearing in Callahan’s summary spreadsheet 

(Exhibit F) as to the number of hours Callahan worked per lease. 

 In general, the lease agreements provided by Callahan are form agreements 

that include lease rates for 12-hour, 24-hour, and weekly leases, respectively. See, 

e.g., [121-26] at 23. There is also a section of the agreements entitled “TYPE OF 

LEASE,” which includes the following options: 

12 HR(DAY) 5 AM to 5 PM 

12 HR(NIGHT) 5 PM to 5 AM (Next Morning) 

24 HR(SINGLE) 5 AM to 5 AM (Next Morning) 

WEEKLY 5 AM Monday to 5 AM Next Monday 

See, e.g., id.39 On many of the lease agreements provided by Callahan, one of these 

options has been circled by hand or otherwise marked in some way. See, e.g., id. at 

31–32. I infer from these markings that, for a given lease agreement, Callahan 

agreed to lease a taxicab for the number of hours indicated. But while many of the 

lease-agreement records include some kind of indication as to which type of lease 

was selected, not all of them do. For example, Callahan purportedly entered into a 

lease agreement for March 2, 2010 to March 3, 2010, but none of the lease-type 

options is selected in this agreement. See id. at 23. It is therefore unclear from this 

record, at least on its face, which type of lease Callahan actually entered for those 

dates. The dates themselves provide some clues: it is clear in this particular 

instance that Callahan did not enter a 12-hour daytime lease, for example, since the 

 

39 A second type of form agreement has only three options: “12 HOURS (DAY),” “12 HOURS 

(NIGHT),” and “24 HOURS.” See, e.g., [121-26] at 43. For these agreements, the type of 

lease selected is typically indicated with a typewritten “x” next to the chosen option. See, 

e.g., id. The lease rate is provided only for the type of lease chosen. See, e.g., id. ($93.00 for 

24 hours). 
72 

start and end dates would have been the same (e.g., March 2, 2010 to March 2, 

2010). But it is equally plausible that Callahan entered a 12-hour nighttime lease as 

that she entered a 24-hour lease—both of which would span from one day to the 

next—for the dates listed. In the spreadsheet attached to her declaration, however, 

Callahan claims (without explanation) that this lease was a 24-hour lease. See id. at 

17. She offers no evidence suggesting that she did anything more than assume that 

the higher number was the correct one. The lease rates transcribed on the 

agreement form provide no guidance, either, since all possible rates (for 12-hour, 24-

hour, and weekly leases) appear in the agreement form and none is marked or 

highlighted in any way. See id. at 23. 

 Thus, at least some of the hours listed in Callahan’s summary spreadsheet—

and thus the number of hours she claims to have worked—are questionable. But I 

need not determine the extent to which Callahan has (or has not) laid an adequate 

foundation for her work hours, because even assuming that all of Callahan’s lease 

hours were tabulated correctly, they do not establish a minimum-wage violation 

using even the “just and reasonable inference” burden of proof. The lease hours that 

Callahan reports are insufficient to carry her burden because Callahan has not 

provided evidence reasonably suggesting that she actually worked those hours 

within the meaning of the FLSA (or, consequently, the IMWL). 

 Callahan claims that she worked every minute of every lease she entered 

during the relevant time period. See [121-26] at 2 ¶¶ 10–11. This was true, she says, 

no matter the length of the lease. She worked every minute of every 12-hour and 24-
73 

hour lease, and the story was no different for leases of longer duration (such as 72 

or 96 hours). See id.; [122] at 20 ¶ 70. However implausible her testimony on this 

point (especially when it concerns leases exceeding 24 hours), how much time 

Callahan spent driving a taxicab is a fact within her personal knowledge, and thus 

a fact that I must accept as true when viewing such facts in plaintiff’s favor. What I 

cannot take at Callahan’s word, however, is her definition of “work” in the first 

place. Whether certain activities constitute work under the FLSA is a matter of law, 

not of fact. 

 Callahan claims that she was “working” as a taxicab driver not only when she 

was driving a cab for hire, but also when she was eating, using the restroom, or 

napping while in line at Chicago-area airports. See [121-26] at 2 ¶ 11. The City 

argues that sleeping is not working, and that Callahan’s statements as to hours 

“worked” are therefore unreliable. See [93] at 30–31. Napping in a taxicab while 

waiting for passengers—or taking a quick break to grab a meal or use the 

washroom—can be “working” under the FLSA. The FLSA requires “no exertion at 

all.” Sehie, 432 F.3d at 751 (citing Armour & Co. v. Wantock, 323 U.S. 126, 133 

(1944)). Even hours “spent in idleness” may be hours worked within the meaning of 

the FLSA. Id. (citing Armour, 323 U.S. at 133). Napping, in short, is not necessarily 

off the table. 

 Nevertheless, not all hours worked in furtherance of one’s job or occupation 

are necessarily hours “worked” under the FLSA. Those that count are the hours 

“that the employee is required to give his employer.” Id. (citing Armour, 323 U.S. at 
74 

133); see also 29 C.F.R. § 785.7 (“The workweek ordinarily includes ‘all the time 

during which an employee is necessarily required to be on the employer’s premises, 

on duty or at a prescribed work place.’” (quoting Anderson, 328 U.S. 680)). Work 

hours that are not explicitly required or requested may also count, but they must at 

least be hours that the employer knows about (or has reason to know about), and 

thus hours that the employer implicitly accepts as work time. See 29 C.F.R. § 785.11 

(stating that time is “working time” when the employer “knows or has reason to 

believe that [the employee] is continuing to work”) (citations omitted); see also 

Kellar v. Summit Seating Inc., 664 F.3d 169, 177 (7th Cir. 2011) (“[T]he FLSA stops 

short of requiring the employer to pay for work it did not know about, and had no 

reason to know about.”) (citations omitted). Here, Callahan provides evidence 

purporting to show only how much she worked as a taxicab driver—not the extent 

to which the City (or any other potential employer under the FLSA) actually 

required her to perform that work, or even knew (or should have known) that she 

did.40 If Callahan’s work was not completed at an employer’s command, or at least 

with an employer’s implicit acceptance, it was not “work” within the meaning of the 

FLSA or, consequently, the IMWL. 

 

40 The FLSA does not relieve employers of their duty “to inquire into the conditions 

prevailing in [their] business [simply] because the extent of the business may preclude . . . 

personal supervision.” Kellar, 664 F.3d at 178 (citation omitted). But even assuming that 

the City’s business was providing taxicab services, the generally prevailing condition of that 

business was that public chauffeurs such as Callahan were not obligated to use their 

licenses at all. Thus, the City had no reason to suspect (and Callahan points to none) that 

Callahan was using her license to drive taxicabs for hire, or how much she was doing so. 
75 

 Thus, even accepting as true Callahan’s representations as to how much she 

earned as a taxicab driver from January 2009 through August 2011—and also 

accepting as true that during that time she worked (in the literal sense) as many 

hours as she now says she did—I cannot draw from that evidence a just and 

reasonable inference that Callahan “worked” within the meaning of the FLSA or 

IMWL any hours for which she was not paid at least the minimum wage. As a 

matter of law, Callahan has therefore failed to establish a minimum-wage violation 

under either statute. 

 Callahan falls back on evidence unrelated to her own driving, relying on 

three studies concerning taxicab-driver wages overall. See [120] at 34.41 These 

studies, says Callahan, show that “many drivers earn less than $7.25 an hour.” 

[141] at 7 ¶ 11. But these studies cannot save Callahan’s claims. Whether drivers 

other than Callahan earn or have earned the minimum wage (under either the 

FLSA or IMWL) is irrelevant to whether Callahan herself earned that minimum. It 

is the latter that Callahan must prove at this stage of the litigation, and she has not 

done so. 

 Thus, even if the City is presumed to be Callahan’s employer within the 

meaning of the FLSA and IMWL, the City’s motion for summary judgment is 

granted—and Callahan’s cross-motion denied—because Callahan has not provided 

 

41 The three studies are a 2009 wage study conducted by Dr. Bruno, a similar wage study 

conducted by David Champion, and the study performed by Dr. Bruno in connection with 

his expert report, as discussed above. See [141] at 7 ¶ 11. 
76 

evidence from which to draw an inference that she was not paid the minimum wage 

as set forth in those statutes. 

IV. Conclusion 

 Callahan was a full-time taxicab driver from January 2009 through August 

2011. During that time, she purportedly earned only enough money to cover her 

personal and occupational expenses—an amount that Callahan says failed to meet 

both state and federal wage minimums. While it is unfortunate that Callahan did 

not earn from taxicab driving as much money as she would have liked, the City of 

Chicago is not obligated to make up the difference. The City is not her employer 

under either statute; and even if it were, Callahan was unable to muster admissible 

evidence to suggest that she is owed any wages. For the reasons discussed above, 

defendant’s motion for summary judgment on Counts IV and V of the amended 

complaint, [90], is granted; Callahan’s cross-motion on the same counts, [119], is 

denied. Callahan’s motion for class certification [65] is denied as moot. The Clerk 

shall enter judgment in favor of the defendant. 

ENTER: 

 ___________________________ 

 Manish S. Shah 

 United States District Judge 

Date: 1/23/15