IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

CESAR E. CALDERON, JULIO ) 

OSWALDO CARRERA, JOSE LUIS ) 

MARTINEZ, CHRISTOPHER ) 

VILLARREAL, and DAVID GARCIA, ) 

 ) 

 Plaintiffs, ) 

 ) 

 vs. ) Case No. 12 C 3793 

 ) 

J. YOUNES CONSTRUCTION LLC ) 

and JOHN YOUNES, ) 

 ) 

 Defendants. ) 

MEMORANDUM OPINION AND ORDER 

MATTHEW F. KENNELLY, District Judge: 

 On May 29-30, 2013, the Court conducted a bench trial on plaintiffs’ claims under 

the Fair Labor Standards Act (FLSA) and the Illinois Minimum Wage Law (IMWL). This 

constitutes the Court’s findings of fact and conclusions of law pursuant to Federal Rule 

of Civil Procedure 52(a)(1). 

Facts

 Plaintiffs Cesar Calderon, Julio Carrera, Jose Martinez, Christopher Villarreal, 

and David Garcia each worked for defendant J. Younes Construction LLC (JYC) on 

during various periods in 2010-2012. Each of them performed various types of 

construction and maintenance work. Each of the plaintiffs worked exclusively for JYC 

during the relevant periods. 

 Defendant John Younes is JYC’s sole owner. The Court found credible his 

testimony that he was not involved in the company’s day to day operations during 2010-

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2012. Rather, John Younes delegated those responsibilities to his father Joseph 

Younes, who ran the business on a day to day basis during 2010-2012. John Younes 

was actively involved in co-managing the business with his father during 2007-2008, 

after he founded the business. He continues to maintain the company’s financial 

records and has hiring and firing authority, though there is no evidence that he 

exercised that authority during 2010-2012. 

 Each of the plaintiffs was hired by Joseph Younes. None of the plaintiffs had an 

employment contract. Mr. Younes’s testimony that he told the plaintiffs they were 

independent contractors was not credible. The Court does accept, however, that Mr. 

Younes told the plaintiffs that they would be responsible for their own taxes. This was 

consistent with the way in which JYC actually paid each of the plaintiffs. 

 JYC set the plaintiffs’ work schedules. The Court did not find credible Joseph 

Younes’s testimony that each worker’s schedule was up to the worker. Rather, the 

Court found credible the plaintiffs’ testimony that their work schedules were determined 

by JYC. If a worker wanted a day off or wanted to leave work early, he had to obtain 

permission from JYC, typically from Joseph Younes. 

 Most, and possibly all, of the work the plaintiffs did was performed at an office 

building located at 9 South Wabash in downtown Chicago. JYC had a contract with the 

building’s owner to perform construction and maintenance work there. The contract 

was not introduced in evidence. The particular jobs to be performed by JYC were 

determined by a representative of the owner (or perhaps the owner himself), a man 

identified by both sides during the trial only as “Joe.” The Court will refer to this man as 

the building owner’s representative. 

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 Some of JYC’s workers – not the plaintiffs – worked as de facto foremen or 

supervisors. The Court will refer to them as foremen. The foremen spoke English, or at 

least better English than the plaintiffs and other workers. 

 The work assignments to be performed by the plaintiffs were determined, for the 

most part, by Joseph Younes, though at times the assignments were determined or at 

least communicated by the building owner’s representative. The plaintiffs spoke little 

English. Work assignments typically were communicated to the plaintiffs by Joseph 

Younes or by one of the JYC foremen. The foremen also had the responsibility of 

keeping track of each worker’s hours. 

 The plaintiffs did not provide their own tools or materials. Joseph Younes 

admitted on direct examination that JYC provided building materials and tools for the 

workers. He would direct JYC workers, including the plaintiffs, to purchase construction 

materials and other supplies from retail stores such as Home Depot. When the plaintiffs 

went to purchase materials and supplies, they used Mr. Younes’s truck to go back and 

forth to the store and haul the items purchased, and they also used his debit or credit 

card to make the purchases. In other words, they did not pay for the supplies 

themselves. The workers did not determine what to purchase and when on their own. 

Rather, the purchases were made at the direction of Joseph Younes. The Court found 

credible the workers’ testimony that they made these excursions but not their testimony 

regarding the frequency of the excursions, which was exaggerated. 

 Each of the plaintiffs worked with, handled, and installed materials that were 

manufactured outside the United States. These included flooring materials (typically 

tile) and lighting fixtures, as well as other items. 

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 Each of the plaintiffs was paid by a check issued by JYC and given to them by 

Joseph Younes. Their pay was calculated on an hourly basis, not by a preset price or 

by the job. JYC did not withhold payroll taxes from the worker’s pay. The company 

also did not provide any of the plaintiffs with either a W-2 form or a 1099 form showing 

his worker’s annual pay. 

 Joseph Younes’s practice was to ask the workers, including some or all of the 

plaintiffs, for a Social Security number or tax identification number. This was done at 

the time they were hired and again after the end of the calendar year. None of the 

plaintiffs provided JYC with this information, and no one from JYC pressed the point. 

They were paid nonetheless. 

 Plaintiff Julio Oswaldo Carrera was paid $8 per hour at all relevant times. 

Plaintiff David Garcia Gamboa started at $7.15 per hour and later got a raise to $7.75 

per hour. Plaintiff Jose Martinez was paid $8 per hour at the outset of his tenure with 

JYC and later got a raise to $8.50 per hour. Plaintiff Cesar Calderon likewise started at 

$8 per hour and later got a raise to $8.50 per hour. Plaintiff Christopher Villarreal was 

paid $8 per hour at all relevant times. 

 Each of the workers worked more than forty hours per week on a regular basis. 

None of them was paid extra for overtime work. Rather, they were compensated at the 

same hourly rate for all of their work. As indicated earlier, their time was kept by one of 

the JYC foremen. None of the workers kept his own time. 

 Some of the workers were, at times, permitted to sell scrap metal recovered 

during demolition at the worksite. There was conflicting testimony regarding what 

became of the proceeds. The court finds that the workers were allowed to keep some 

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modest portion of the proceeds. 

 Carrera was still working for JYC at the time this suit was filed. At the behest of 

Joseph Younes, the building owner’s representative spoke with Carrera about the 

lawsuit after it was filed. The owner’s representative expressed a negative reaction to 

the filing of suit and tried to talk Carrera into dropping his claims. 

 Villarreal was also still working for JYC at the time this suit was filed. He testified 

credibly that the way that he was treated on the job changed once JYC became aware 

of the lawsuit, and in particular he was subjected to closer supervision. Both Joseph 

Younes and the building owner’s representative told Villarreal they were upset by the 

lawsuit and his participation in it. 

 After JYC was served with summons, and likely after some short period of time in 

which the company decided how to react, Joseph Younes caused the preparation of a 

document that amounted to a release or waiver of claims. He did not retain a copy of 

the draft release / waiver. Exactly who prepared the document is unclear, and Joseph 

Younes was highly evasive regarding its preparation during his testimony at trial. His 

testimony about the document was not credible, and his evasiveness on this subject 

detracted from his credibility on other topics. 

 After the draft release was presented to Carrera, he took a photograph of it with 

his cell phone. The Court admitted into evidence a printout of that photograph after 

finding it to be an accurate copy of the document, the original of which was no longer 

available. 

 The release / waiver, Plaintiffs’ Exhibit 10, reads as follows: 

 

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AFFIDAVIT OF 

Christopher Villarreal [sic] 

I, Julio Oswaldo Carrera [sic], being of sound mind and body, and in no 

way being unduly influenced, coerced, or made to believe that it was 

necessary for my wellbeing [sic] or the wellbeing [sic] of my friends, family 

and associates, or any other individual or entity that is connected with me, 

freely state and being sworn say: 

1. with respect to the matter of Cesar E. Calderon, Julio Carrera, Jose 

Luis Martinez and Christopher Villarreal v. J. Younes Construction and 

John Y. Younes, also known as case number 1:12-CV-3793 in the United 

States District Court, Northern District of Illinois: 

a. I wish to withdraw myself as a Plaintiff in said case number 

1:12-CV-3793; 

b. I will not bring a cause of action against J. Younes 

Construction and John Y. Younes, in either the Federal court 

system or Illinois court system – as relating to the time that I have 

provided services to J. Younes Construction and or John Y. Younes 

– for: 

i. violation of the Fair Labor Standards Act – Overtime Wages; 

ii. violation of the Illinois Minimum Wage Law – 

Overtime Wages; 

iii. violation of the Illinois Minimum Wage Law – 

Minimum Wages; 

iv. violation of any other Federal or Illinois law 

concerning wages. 

2. I will not bring an arbitration or mediation matter before any hearing 

body for wage related issue [sic] concerning the time that I have provided 

services to J. Younes Construction and John J. Younes. 

Further affiant sayeth not. 

_____________________ 

Julio Oswaldo Carrera [sic] 

Witness Witness 

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Subscribed and sworn to before me this ____ day of June, 2012. 

_______________ 

Notary public 

 At Joseph Younes’s behest, the building owner’s representative presented both 

Carrera and Villarreal with a copy of this document and asked them to sign it. Villarreal 

also testified credibly that Joseph Younes presented the document to him on a second 

occasion and again asked him to sign it. Neither Carrera nor Villarreal agreed to sign 

the document. Both were terminated shortly after their refusals. Both plaintiffs testified 

credibly that Joseph Younes told them they were being terminated because they would 

not withdraw their legal claims. 

 The Court did not find credible Joseph Younes’s testimony on direct examination 

that he terminated Villarreal due to lack of sufficient work and Carrera for performance 

based reasons. He testified Villarreal continued to work for JYC for three more months 

after he declined to sign the release that Joseph had asked him to sign. Joseph’s 

testimony on this point was false; indeed, it was demonstrably untrue. Court records 

reflect that John Younes was served with the complaint and summons for himself and 

JYC on May 28, 2013. It is reasonable to infer that the Youneses took some short 

amount of time after this to determine what to do. It is likewise reasonable to infer that it 

took some short amount of time to procure the drafting of the release / waiver 

document. The document appears to have been prepared in June 2012; that is the date 

that appears in the jurat clause at the bottom of the document.1

 JYC’s records 

regarding the dates and amounts of payments to the plaintiffs, which were prepared by 

its accountant based on records from the company’s checking account and consultation 

 

1

 The docket reflects that the attorney for JYC and John Younes filed his appearance on June 

20, 2012, between the dates of Villarreal’s and Carrera’s terminations. 

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with Joseph Younes, established that Carrera’s last paycheck was dated June 23, 2012 

and that Villarreal’s last paycheck was dated June 16, 2012. In later testimony, Joseph 

Younes admitted that Carrera’s last date working for JYC was the date of his last 

paycheck. Thus the evidence establishes that the plaintiffs were terminated in midJune, not three months after the filing of the suit as Joseph Younes tried to maintain. 

 Joseph Younes’s false exculpatory testimony on this point is evidence of 

consciousness of guilt on the question of retaliatory termination. Moreover, in later 

testimony, Younes virtually conceded that the termination was associated with the 

lawsuit, or at least with these employees’ apparent attempts to get others to join the 

lawsuit 

 Plaintiff Villarreal was out of work for approximately four months. He testified 

credibly that he typically made about $1600 per month and that as a result, his lost 

wages amounted to $6400. He stated that as a result of his unemployment, he got 

behind on his bills and other financial obligations. It took Carrera a little under six 

weeks to get another job after he was terminated. He testified credibly that his lost 

wages totaled $1600. Neither Carrera nor Villarreal gave any testimony regarding 

emotional distress. 

 As already indicated, the Court did not find Joseph Younes to be a particularly 

credible witness on certain key contested issues. In addition to the points noted above, 

he flipped back and forth on whether the time records prepared by JYC’s accountant 

are accurate. The Court finds that they are. Mr. Younes ultimately testified, and the 

Court accepts, that the records were prepared after the fact by dividing the total amount 

of each paycheck by the particular employee’s hourly rate. Understood thus, the 

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records were unfavorable to JYC because they established that workers had worked 

more than forty hours in numerous weeks without being paid time-plus-one-half and that 

in some instances they had worked for less than the applicable minimum wage. Mr. 

Younes’s earlier testimony that the records were inaccurate represented, in the Court’s 

view, a false exculpatory statement aimed at trying to evade the time records’ 

implications. Second, as indicated earlier, Mr. Younes gave false testimony regarding 

the dates of termination of the two plaintiffs who were still working for the company at 

the time JYC was served with the lawsuit. In these and other respects, Mr. Younes 

appeared to the Court to be attempting to tailor his testimony to the perceived needs of 

the moment. 

Discussion

 Plaintiffs have asserted four claims in their amended complaint. Their first claim 

is a claim under the Fair Labor Standards Act for unpaid overtime wages. Their second 

claim is a parallel claim under the Illinois Minimum Wage Law. Plaintiffs’ third claim is a 

claim under the IMWL for failure to pay minimum wages. Finally, plaintiffs Carrera and 

Villarreal have asserted a claim under the FLSA in which they allege that defendants 

terminated them in retaliation for asserting their rights under the FLSA. 

A. Unpaid overtime claims

 The FLSA requires employers to pay their employees a minimum hourly wage 

and one-and-one-half times the employee’s hourly rate for any hours worked in a given 

week over forty hours. 29 U.S.C. §§ 206(a)(1) & 207(a)(1). These requirements apply 

if the employee is employed in an enterprise engaged in commerce or if the employee 

himself is engaged in commerce. Id. 

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Among the disputed issues in this case are whether the FLSA’s “commerce” 

requirement is met and whether the plaintiffs were employees of JYC and of John 

Younes. 

 1. Commerce requirement

 As just indicated, the FLSA’s requirements apply to an employee if he is 

employed in an enterprise engaged in commerce or if the employee himself is engaged 

in commerce. 29 U.S.C. §§ 206(a)(1) & 207(a)(1). “Commerce” is defined as trade, 

commerce, transportation, transmission, or communication among the states or 

between any state and any place outside that state. Id. § 203(b). An enterprise 

engaged in commerce is one that “has employees engaged in commerce or in the 

production of goods for commerce, or that has employees handling, selling, or 

otherwise working on goods or materials that have been moved in or produced for 

commerce by any person . . . .” Id. § 203(s)(1)(A)(i). 

 Plaintiffs have easily established FLSA coverage by a preponderance of the 

evidence. They credibly testified that they handled materials that were produced 

outside the United States. 

 2. Employees vs. independent contractors 

 The more hotly disputed issue concerns whether the plaintiffs were “employees” 

of JYC. Defendants contend that they were independent contractors. They rely, in part, 

on Joseph Younes’s statements to the workers that they were responsible for their own 

taxes and on JYC’s non-withholding of payroll taxes from the workers’ pay. 

 The defendants’ subjective beliefs and the labels they claim to have attached to 

the workers (contractor as opposed to employee) are not determinative. “[S]tatus as an 

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‘employee’ for purposes of the FLSA depends on the totality of the circumstances rather 

than on any technical label . . . .” Vanskike v. Peters, 974 F.2d 806, 808 (7th Cir. 1992). 

The FLSA’s statutory definitions regarding employment “are broad and comprehensive 

in order to accomplish the remedial purposes of the Act.” Sec’y of Labor v. Lauritzen, 

835 F.2d 1529, 1534 (7th Cir. 1987). The common law definitions of employee and 

independent contractor do not govern. Id. 

 To determine whether a worker is an employee within the meaning of the FLSA, 

a court “must examine the economic reality of the working relationship.” Vanskike, 974 

F.2d at 808 (internal quotation marks omitted); Lauritzen, 835 F.2d at 1534. 

“[E]mployees are those who as a matter of economic reality are dependent upon the 

business to which they render service.” Id. (internal quotation marks omitted). 

 The Seventh Circuit has stated that 

 [i]n seeking to determine the economic reality of the nature of the 

working relationship, courts do not look to a particular isolated factor but to 

all the circumstances of the work activity. Certain criteria have been 

developed to assist in determining the true nature of the relationship, but 

no criterion is by itself, or by its absence, dispositive or controlling. 

 Among the criteria courts have considered are the following six: 

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 his managerial skill; 

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

required for his task, or his employment of workers; 

4) whether the service rendered requires a special skill; 

5) the degree of permanency and duration of the working 

relationship; 

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

the alleged employer’s business. 

Id. at 1534-35 (citation omitted). See also See Estate of Suskovich v. Anthem Health 

Plans of Va., Inc., 553 F.3d 559, 565 (7th Cir. 2009). 

 These factors weigh strongly in favor of a finding that the plaintiffs were 

employees of JYC. First, JYC, not the workers, had control over the manner in which 

the work was performed. Indeed, Joseph Younes testified that the employees typically 

were not at the work site at times when he was not there. The workers also testified 

credibly that their work assignments were directed by Younes and, in some situations, 

the JYC foremen. Second, the workers had no opportunity for profit or loss; they were 

paid a fixed wage. The fact that they may have, on occasion, been able to sell scrap 

metal recovered in doing demolition and sometimes to keep some modest part of the 

proceeds is of little consequence, given the infrequency of those events. Third, the 

workers had no investment in equipment or materials; it is undisputed that these were 

provided by JYC. In addition, none of the plaintiffs employed others. Rather, all 

workers were hired by JYC. 

 Fourth, without minimizing the degree of skill required by the workers, they were 

performing basic construction work. There is no indication that they had specialized 

skills or training. Fifth, the work relationship had significant duration and permanency. 

The workers performed work only for JYC. They worked regular schedules of over forty 

hours per week for significant periods of time. Sixth, the services the workers rendered 

was integral to JYC’s business. The company could not have performed its 

construction and maintenance contract without the plaintiffs and other workers with 

whom JYC dealt on a similar basis. 

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 The only factor shown by the evidence that suggests an independent contractor 

relationship involves the absence of withholding of payroll taxes. This factor is not 

determinative and does not outweigh the others discussed above. Making this factor 

determinative would permit an unscrupulous employer to evade its obligations under the 

FLSA simply by not complying with federal and state tax laws. The arrangement 

between JYC and the plaintiffs under which they were paid without withholding was no 

doubt considered mutually beneficial, at least in the short run: JYC saved on payroll 

taxes, and the workers got their gross pay, not a lower amount after withholding of 

taxes. But even if there was a mutual intent to evade federal and state income tax laws 

and the Social Security Act, that does not determine a worker’s status as an employee 

as opposed under the FLSA. 

 In sum, considering the totality of the circumstances and the factors set out by 

the Seventh Circuit, the Court finds that plaintiffs have proved by a preponderance of 

the evidence that they were employees of JYC, not independent contractors or 

subcontractors. 

3. FLSA compliance

 The payroll records prepared by JYC show on their face that each of the plaintiffs 

regularly worked over forty hours per week but was not paid time-and-one-half for those 

hours. Plaintiffs have proven by a preponderance of the evidence that JYC violated the 

FLSA for each of those weeks. 

4. Liability of John Younes 

The remaining disputed liability issue regarding plaintiffs’ overtime pay claims 

concerns the individual liability of John Younes. This turns on whether plaintiffs have 

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proven that he is an “employer” within the meaning of the FLSA. The FLSA’s definition 

of employer is “expansive[ ].” Falk v. Brennan, 414 U.S. 190, 195 (1973). 

 An individual may be considered an employer under the FLSA if he has 

supervisory authority over the employee and is at least partly responsible for the 

statutory violation. See 29 U.S.C. § 203(d); Riordan v. Kempiners, 831 F.2d 690, 694 

(7th Cir. 1987). The ability to exercise control over the aspect of employment that gave 

rise to the statutory violation is the key factor. See, e.g., Dole v. Elliott Travel & Tours, 

Inc., 942 F.2d 962, 966 (6th Cir. 1991). Control over the entity’s day to day operations 

is not required. Id.

 John Younes was, at all relevant times, JYC’s sole owner and member. During 

the years when the plaintiffs were employed by JYC, he was essentially an absentee 

owner. He testified credibly that he had nothing to do with the company’s operations 

during that period. Rather, he delegated that responsibility to his father, Joseph 

Younes, whom John Younes employed on behalf of JYC. 

 John Younes testified, however, that he ran JYC with his father’s assistance 

during the years 2007-2008, when the company was founded.2

 He had no direct role in 

determining the pay of any of the plaintiffs in this case. Joseph Younes testified, 

however, that the way in which he dealt with the plaintiffs was the way he had “always” 

worked. “Always” quite clearly covers the period when he was co-managing the 

company with his son John, the company’s owner. Joseph Younes’s testimony permits 

a reasonable inference that JYC’s practice of noncompliance with the FLSA and IMWL 

was established and existed during the earlier period in which John Younes was 

 

2

 John Younes withdrew from day to day operations when business turned down, leaving daily 

management to his father. 

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running the company’s day to day operations. During the years when the plaintiffs were 

employed by JYC, Joseph Younes carried on this established practice, acting on behalf 

of his son, the company’s owner. The Court finds based on this evidence that John 

Younes was aware of, helped establish, and condoned the practice of non-compliance 

with the FLSA that plaintiffs established at the trial in this case. 

 John Younes also testified that he had the power to hire and fire workers (though 

he said he did not exercise this power during the years in question) and that he 

maintained JYC’s financial records and signed the company’s tax documents. 

 These factors, taken together, are sufficient to establish by a preponderance of 

the evidence that John Younes was an employer of the plaintiffs who is individually 

liable under the FLSA for unpaid overtime compensation, even though he did not deal 

directly with any of them. See, e.g., Herman v. RSR Security Servs. Ltd., 172 F.2d 132, 

139 (2d Cir. 1999) (identifying factors used to determine whether one is an employer 

under the FLSA). 

5. FLSA liquidated damages

 An employer that violates the FLSA’s overtime pay requirements is liable not just 

for the unpaid amount but also “an additional equal amount as liquidated damages.” 29 

U.S.C. § 216(b). Liquidated damages are presumptively appropriate for an FLSA 

violation. See Urnikis-Negro v. American Family Property Servs., 616 F.3d 665, 672 

(7th Cir. 2010). A court “may choose not to award liquidated damages where the 

employer shows that it acted in good faith with reasonable grounds to believe that its 

actions did not violate the FLSA.” Bankston v. State of Illinois, 60 F.3d 1249, 1254 (7th 

Cir. 1995). 

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 Defendants have offered no evidence that they acted in good faith or with 

reasonable grounds to believe they were complying with the law. Essentially the only 

evidence they offered on this score is Joseph Younes’s testimony that the manner in 

which he paid the plaintiff employees was the way he had always conducted the 

business. This is hardly evidence of good faith. As the Court has indicated, defendants 

and plaintiffs may have entered into a relationship that was in their short term mutual 

interest – because tax withholding obligations were avoided – but that does not suggest 

good faith, let alone that defendants had reasonable grounds to believe they were 

complying with the FLSA. Plaintiffs are entitled to liquidated damages on their FLSA 

unpaid overtime claim. 

 6. IMWL overtime claim

 Liability for unpaid overtime compensation under the IMWL is determined by the 

same standards that govern liability under the FLSA. See, e.g., Villarreal v. El Chile, 

Inc., 776 F. Supp. 2d 778, 784 (N.D. Ill. 2011). The Court finds both JYC and John 

Younes liable to plaintiffs under the IMWL for failure to pay overtime wages for the 

reasons described with regard to the FLSA. 

 Under the IMWL, an employee who is not paid as the statute requires is entitled 

to recover the amount of the underpayment, plus “damages of 2% of the amount of any 

such underpayments for each month following the date of payment during which such 

underpayments remain unpaid.” 820 ILCS 105/12(a). It would appear that this penalty 

is imposed over and above the damages, including liquidated damages, that are 

available under the FLSA. Defendants do not argue otherwise. 

B. IMWL minimum wage claim 

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 Illinois requires a higher minimum hourly wage than the one established by the 

FLSA, and the higher state minimum controls. See 29 U.S.C. § 218(a). During the 

period at issue in this case, the Illinois minimum wage was $8.25 per hour. See 820 

ILCS 105/4(a). 

 The plaintiffs proved that each of them was paid less than the Illinois minimum 

wage for at least some pay periods, as established by JYC’s payroll records that were 

admitted in evidence. JYC’s liability is established by the Court’s finding that the 

plaintiffs were employees of the company and the payroll records showing the 

applicable pay rates. JYC is liable for the unpaid amounts as well as the two percent 

penalty previously discussed. 

 Plaintiffs failed to establish John Younes’s liability for the minimum wage 

violation. As indicated earlier, there is no evidence that he was involved in setting pay 

rates for the plaintiffs or for other workers during 2010-2012. In contrast to the Court’s 

finding regarding non-payment of overtime pay, the evidence regarding John Younes’s 

earlier involvement in day to day management and Joseph Younes’s testimony that he 

dealt with the plaintiffs as he always had with other employees is insufficient to establish 

the requisite degree of involvement or control over the setting of hourly pay rates. 

Among other things, the company’s records reflect that some plaintiffs were, during 

some periods, paid more than the minimum wage. Thus there was no consistent 

practice of below-minimum-wage pay. 

C. FLSA retaliation claim

 The FLSA makes it unlawful for an employer to discharge or discriminate against 

an employee for asserting a claim under the statute. 29 U.S.C. § 215(a)(3). A plaintiff 

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in an FLSA retaliation case may prove his claim by direct or indirect evidence. See, 

e.g., Kasten v. Saint-Gobain Performance Plastics Corp., 703 F.3d 966, 972 (7th Cir. 

2012). 

 It is undisputed that Carrera and Villarreal engaged in protected action – they 

filed and prosecuted this suit – and suffered an adverse employment action after doing 

so – they were terminated after they declined to drop their claims. The question is 

whether they have proven a causal link between their protected expression and their 

termination. See id. A plaintiff may rely on direct evidence of a causal link or on 

circumstantial evidence that permits an inference of retaliation, such as evidence of 

suspicious timing, ambiguous statements or behavior; evidence that similarly situated 

employees were treated differently; or a pretextual reason for adverse employment 

action. See id. at 973. 

 Carrera and Villarreal have offered credible direct evidence of a causal link 

between their filing of this suit and their termination by JYC. Both plaintiffs testified 

credibly that shortly after they declined to sign the release form Joseph Younes had 

caused to be prepared dropping their case, Younes told them that they were terminated 

because of this lawsuit. 

 In addition, as the Court has previously noted, Joseph Younes’s false 

exculpatory testimony that the plaintiffs continued to work for months after they declined 

to sign the release / waiver constitutes evidence of consciousness of guilt. This 

testimony was demonstrably false, as the Court has described. The Court also regards 

Mr. Younes’s evasiveness regarding the preparation of the release / waiver as evidence 

supporting a finding that he deliberately terminated the plaintiffs because they were 

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pursuing their rights under the FLSA. Finally, as the Court has noted, Mr. Younes 

ultimately gave testimony that expressly connected the plaintiffs’ terminations to their 

exercise of rights under the FLSA. 

 For these reasons, JYC is liable to plaintiffs for unlawful retaliation in violation of 

the FLSA. Plaintiffs failed to establish, however, John Younes’s liability for this 

violation. There is no indication that he played any role either in the preparation of the 

release / waiver document, its presentation to the two plaintiffs, or the decision to 

terminate them. And there is no evidence that he had anything to do with the 

establishment of any policies or practices of the company that Joseph Younes carried 

out in terminating Carrera and Villarreal. 

D. Damages

 The Court finds that the summary chart prepared by plaintiffs accurately sets 

forth their damages for the unpaid overtime and minimum wage violations, including 

unpaid wages, liquidated damages under the FLSA, and IMWL penalties. Plaintiffs’ 

counsel will need to provide the Court with revised figures regarding John Younes, 

however, to reflect the fact that the Court has found him liable only for the overtime pay 

violations, not the minimum wage violations. 

 A prevailing plaintiff on a FLSA retaliation claim may recover lost wages, an 

equal amount as liquidated damages, and other types of compensatory damages, such 

as for emotional distress, and punitive damages. See 29 U.S.C. § 216(b); Avitia v. 

Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1226 (7th Cir. 1995) (citing Travis v. 

Gary Cmty. Mental Health Ctr., Inc., 921 F.2d 108, 111-12 (7th Cir. 1990)). As indicated 

earlier, liquidated damages are presumptively available for FLSA violations. 

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Defendants have offered no evidence that they acted in good faith or with reasonable 

grounds to believe that they were not violating the FLSA; indeed, the contrary was true. 

 The Court awards plaintiff Carrera $1,600 in lost wages on the retaliation claim, 

plus another $1,600 in liquidated damages and awards plaintiff Villarreal $6,400 in lost 

wages plus $6,400 in liquidated damages. Neither plaintiff offered evidence of 

emotional distress arising from the termination, so the Court awards no damages in that 

regard. The Court does not award punitive damages because the liquidated damages 

are sufficient to punish and deter JYC for its deliberate violation of the FLSA’s antiretaliation provision. 

Conclusion

 For the reasons stated above, the Court finds in favor of all plaintiffs and against 

defendants J. Younes Construction and John Younes on plaintiffs’ FLSA and IMWL 

unpaid overtime claims (Counts 1 and 2); in favor of all plaintiffs and against J Younes 

Construction on plaintiffs’ IMWL minimum wage claims (Count 3) but in favor of John 

Younes on that claim; and in favor of plaintiffs Carrera and Villarreal and against J 

Younes Construction on plaintiffs’ FLSA retaliation claims (Count 4) but in favor of John 

Younes on that claim. Plaintiffs’ counsel is directed to promptly recalculate the damage 

award against John Younes in light of the Court’s finding in his favor on certain claims. 

The revised calculation is to be filed by no later than June 25, 2013. As an attachment 

to that submission, plaintiffs’ counsel is to attach the summary chart regarding damages 

provided to the Court at the time of closing arguments so that the chart will be part of 

the record in the case. A status hearing is set for June 27, 2013 at 9:30 a.m. for the 

purpose of entry of a final judgment and setting a schedule for briefing the issue of 

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attorney’s fees. 

 ________________________________ 

 MATTHEW F. KENNELLY 

 United States District Judge 

Date: June 23, 2013 

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