IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

Daniel A. Madero, et al., )

)

Plaintiffs, ) Case No. 12 C 50157

 ) 

 vs. )

)

Peters Engineering, Inc., et al., ) Judge Philip G. Reinhard

)

Defendants. )

ORDER

For the reasons stated below, defendants’ motion [116] for partial summary judgment is

granted in part and denied in part. Summary judgment is granted on any IPWA claims plaintiffs

are making for work performed by plaintiffs for PEI on jobs PEI performed for KDL Windstream

in furtherance of KDL Windstream providing services to its customers pursuant to master

services agreements (containing the provisions discussed above found in Dkt # 120-8 and 120-9

or provisions substantially similar thereto) that KDL Windstream entered with its customers. 

Defendants also are entitled to summary judgment on any IPWA claims plaintiffs are making for

work performed by plaintiffs for PEI on jobs PEI performed for Comcast in furtherance of

Comcast providing services to its customers pursuant to any agreement (containing the Terms

discussed above found in Dkt # 131-4 pp. 31-35 or provisions substantially similar thereto) that

Comcast entered with its customers. Otherwise, the motion for partial summary judgment is

denied. The parties are ordered to contact Magistrate Judge Johnston within 28 days to arrange a

settlement conference or mediation.

STATEMENT - OPINION

Plaintiffs, Daniel Madero, John Buffo, Paul Crager, Adam Dezran, Jovani Dorta, Jeff

Jaenecke, Jamie Martin II, Nathan Sebright, Joe Stubenrauch, Robert Thor II, Peter Walker, and

Larry Winchester bring this action against defendants, Peters Engineering, Inc. (“PEI”), Dean A.

Peters, and Joshua A. Peters alleging claims under the Fair Labor Standards Act (“FLSA”), 29

U.S.C. §201 et seq. (Count I), the Illinois Minimum Wage Law (“IMWL”), 820 ILCS 105/1 et

seq. (Count II)., and the Illinois Prevailing Wage Act (“IPWA”), 820 ILCS 130 et seq. (Count

III). Madero also brings a claim of retaliation under the FLSA, 29 U.S.C. § 215(a)(3) (Count

IV). The court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367(a). 

Defendants move [116] for partial summary judgment. They seek summary judgment on

plaintiffs’ IPWA claims (Count III) and Madero’s FLSA retaliation claim (Count IV). They also

seek summary judgment as to all claims against Joshua Peters (“Josh”). 

1
“It is the policy of the State of Illinois that a wage of no less than the general prevailing

hourly rate as paid for work of a similar character in the locality in which the work is performed,

shall be paid to all laborers, workers and mechanics employed by or on behalf of any and all

public bodies engaged in public works.” 820 ILCS 130/1. “Any laborer, worker or mechanic

employed by the contractor or by any sub-contractor under him who is paid for his services in a

sum less than the stipulated rates for work” under a contract for public works “shall have a right

of action for whatever difference there may be between the amount so paid, and the rates

provided by the contract together with costs and such reasonable attorney’s fees as shall be

allowed by the court.” 820 ILCS 130/11.

Plaintiffs are former employees of PEI. PEI installed fiber optic and coaxial cable. PEI

performed this work under contracts with Comcast and KDL Windstream.1

 Plaintiffs claim that

some of the jobs they worked on while employed by PEI were subject to the IPWA but that they

were not paid the prevailing wage for this work. The work plaintiffs performed included aerial,

underground, ground hand, splicing, and multi-dwelling unit work. In these positions plaintiffs

performed various duties relating to the installation and connection of fiberoptic and coaxial

cable in commercial buildings. Their duties included digging holes and installing utility poles;

hanging, running and anchoring cable fiber on utility poles; digging trenches and constructing

ducts in those trenches; pulling cable through the ducts using a boring machine; clearing brush

and providing traffic control; creating points of entry in preexisting structures; splicing cable

fiber; and pulling and running cable fiber into and through commercial buildings. Plaintiffs also

dug trenches, exposed building foundations, and bored holes on public school property. 

Plaintiffs worked on school property and in school buildings of a number of Illinois school

districts. 

 The IPWA “applies to the wages of laborers, mechanics and other workers employed in

any public works, as hereinafter defined, by any public body and to anyone under contracts for

public works.” 820 ILCS 130/2. The IPWA defines “public body” to mean “the State or any

officer, board, or commission of the State or any political subdivision or department thereof, or

any institution supported in whole or in part by public funds, and includes every county, city,

town, village, township, school district, irrigation, utility, reclamation improvement or other

district and every other political subdivision, district or municipality of the state whether such

political subdivision, municipality or district operates under special charter or not.” Id. “Section

2 of the [IPWA] defines ‘public works’ as ‘all fixed works constructed or demolished by any

public body, or paid for wholly or in part out of public funds.” 820 ILCS 130/2.2

”

1

 The term “KDL Windstream” used herein includes the company Windstream Communications as well as

Norlight, Inc., Norlight Telecommunications, Inc., Cinergy Communications and Kentucky Data Link. Windstream

Communications has acquired all of these companies. The term “Comcast” also includes Insight Communications

which sold its Illinois cable systems to Comcast in 2008.

2

 This language became effective January 1, 2010. Prior to that the provision provided:

“Public works” means all fixed works constructed by any public body, other than work done directly by any public

utility company, whether or not done under public supervision or direction, or paid for wholly or in part out of public

funds. The amendment added “demolition” and moved the language exempting public utility companies to a

separate sentence later in Section 2. 

2
 “Section 2 defines ‘construction’ as ‘all work on public works involving laborers,

workers or mechanics’ including ‘any maintenance, repair, assembly, or disassembly work

performed on equipment whether owned, leased, or rented.’” Section 3 provides “[n]ot less than

the general prevailing rate of hourly wages for work of a similar character on public works in the

locality in which the work is performed, and not less than the general prevailing rate of hourly

wages for legal holiday and overtime work, shall be paid all laborers, workers and mechanics

employed by or on behalf of any public body engaged in the construction or demolition of public

works. Only such laborers, workers and mechanics as are directly employed by contractors or

subcontractors in actual construction work on the site of the building or construction job, and

laborers, workers, and mechanics engaged in the transportation of materials and equipment to or

from the site . . . shall be deemed to be employed upon public works.3

” 820 ILCS 130/3. 

Summary judgment is appropriate only if the evidence presented, taken most favorably to

the non-moving party, reveals no genuine issue of material fact and that the moving party is

entitled to judgment as a matter of law. Goodman v. Nat’l Security Agency, Inc., 621 F.3d 651,

654 (7th Cir. 2010). “Evidence supporting or opposing summary judgment must be admissible if

offered at trial, except that affidavits, depositions, and other written forms of testimony can

substitute for live testimony.” Widmar v. Sun Chemical Corp., 772 F.3d 457, 460 (7th Cir. 2014). 

The “opponent of summary judgment need only point to evidence that can be put in admissible

form at trial, and that, if believed by the fact-finder, could support judgment in his favor.” Marr

v. Bank of America, N.A., 662 F.963, 966 (7th Cir. 2011). The issue is whether plaintiffs have

presented evidence that, if believed, shows they were engaged in the construction of public

works– “fixed works constructed by any public body . . . or paid for wholly or in part out of

public funds.” 820 ILCS 130/2.

Plaintiffs worked for PEI on projects PEI did for KDL Windstream. These projects were

related to certain KDL Windstream master services agreements it entered with its customers. 

Plaintiffs worked on projects for Comcast. These projects were related to certain Comcast

service agreements it entered with its customers. Collectively, the court will refer, at times, to

these KDL Windstream and Comcast customer agreements as the “Customer Contracts.” 

Plaintiffs also claim to have worked for PEI on projects related to a contract KDL Windstream

made with the State of Illinois. This contract was entered by Cinergy Communications and the

state. The court will refer, at times, to this contract as the “State Contract.” The court will

address plaintiffs’ claims for work on projects related to the Customer Contracts first. Those

related to the State Contract will be discussed later.

Comcast and KDL Windstream are providers of cable and internet services. Looking to

the Customer Contracts, the record contains master service agreements entered by KDL

Windstream with public school districts in Illinois to provide cable and internet services to those

districts. (Dkt # 120-8, 120-9) The terms of those agreements provide that the schools, as

customers, are purchasing services from KDL Windstream. “Service” is defined as transmission

capacity. The master service agreements provide that the term of the agreement is five years with

automatic annual renewal thereafter unless prior notice of cancellation is given. As part of the

agreement, the customers granted KDL Windstream “an irrevocable and indefeasible right to

3

 This language became effective January 1, 2010. The amendment added the word “demolition.”

3
occupy, use and maintain however much space and power at each CUSTOMER Location as

[KDL Windstream] reasonably desires to satisfy its obligations under this Agreement (the

“Licensed Space”), for the term of this Agreement or any then-existing Service Order as long as

such Service Order is in effect. From and after the date efforts to ready the Licensed Space for

[KDL Windstream]’s occupancy are commenced, CUSTOMER may not relocate, or cause [KDL

Windstream] to relocate any of [KDL Windstream]’s equipment or facilities from any

CUSTOMER Location during the term. [KDL Windstream] and its affiliates shall have 24 hour/

7 day per week unescorted access to such space, including any necessary easement and building

entrance rights to extend [KDL Windstream]’s network from public rights of way into the

CUSTOMER Location. No fees or charges shall be imposed on [KDL Windstream] in

connection with, or related to, the License.” 

The master service agreements also provided that “[t]itle to [KDL Windstream]’s

equipment and other facilities located in or at each CUSTOMER Location shall remain with 

[KDL Windstream] and its subtenants, sublicensees, successors and assigns, as applicable. From

time to time throughout the term [KDL Windstream] may remove, or cause to be removed, from

any CUSTOMER Location, any or all of [KDL Windstream]’s equipment or other facilities. 

Upon expiration or termination of the License, [KDL Windstream] shall remove, or cause to be

removed, from each CUSTOMER Location, any and all of [KDL Windstream]’s equipment and

other facilities. CUSTOMER hereby acknowledges and agrees that only [KDL Windstream]

authorized personnel shall be allowed to access the [KDL Windstream] equipment and other

facilities.”

The agreements do not define “facilities.” “[A]n undefined term in a contract will be

given its plain and ordinary meaning, which is found in its standard dictionary definition.” LaPort

v. MB Financial Bank, N.A., 983 N.E.2d 1055, 1059 (Ill. App. 2012). The word “facility” is

defined in the dictionary as “something that makes an action, operation, or course of conduct

easier.” “Something (as a hospital) that is built, installed, or established to serve a particular

purpose.” Merriam-Webster Online Dictionary (2015), available at http://www.merriamwebster.com/dictionary/facilities (last visited May 5, 2015). In the context of the master services

agreements, the plain and ordinary meaning of “facilities” is those items “built, installed or

established” by KDL Windstream in order to enable KDL Windstream to provide the services it

was required to provide under the master services agreements. It is clear from these agreements

that KDL Windstream was at all times the owner of everything that was installed on and in the

customer’s property and that it was the agreement of the parties to those agreements that what

KDL Windstream installed, it would remove at the termination of the master service agreements

and any service orders issued thereunder. 

The record contains Comcast’s Network services agreement with the Harlem School

District dated March 21, 2011 for the provision of Ethernet Dedicated Internet Service. (Dkt #

131-4, pp. 29- 35) This agreement included “the standard Comcast Business Communications,

LLC General Terms and Conditions (“Terms”) (Dkt # 131-4 pp. 31-35).” The Terms provide

that Comcast will provide “to Customer the Service” at prices and locations set forth in attached

schedules. “The Service is provisioned by utilizing fiber optic cable, associated with electronics

and other equipment (‘Network’), which transports and distributes digital signals . . . to

Customer’s Building.” “The Network is provisioned into Customer’s Building at the point of

4
Interconnection between the Network and Customer’s provided equipment located at Customer’s

Building (‘Demarcation Point’). “The Service does not include connection . . . on the

Customer’s side of the Demarcation Point.” The Terms provide the “Network is and shall

remain the property of [Comcast] regardless of whether installed between, within or upon the

Buildings and whether installed overhead, above, or underground and shall not be considered a

fixture or an addition to the land or the Buildings located thereon. Customer agrees that it shall

take no action that directly or indirectly impairs [Comcast]’s title to the Network.” “Nothing in

this Agreement shall preclude [Comcast] from using the Network for services provided to other

[Comcast] customers.” “For a period of twelve (12) months following [Comcast]’s

discontinuance of Service to the Buildings, [Comcast] retains the right to remove the Network

including, but not limited to, that portion of the Network that is located in the Buildings. To the

extent [Comcast] removes such portion of the network, it shall be responsible for returning the

Buildings to their prior condition, reasonable wear and tear excepted.”

Under the Terms, “Customer, at no cost to [Comcast] shall secure throughout the term of

Service any easements, leases, or other agreements necessary to allow [Comcast] to use existing

pathways into and in each Building to the Demarcation Point for the Service.” The term of the

agreement is five years with automatic annual renewal thereafter unless prior notice of

cancellation is given. The Terms provide that the Customer agrees to ensure that all uses of the

Services installed at its premises are legal and appropriate. Comcast reserves the right to

terminate or suspend the Service and or remove from the Service any information by or to

Customer if it determines this requirement is not met.

The Terms make clear that Comcast, not the Customer was the owner of everything

installed by Comcast on or in the customer’s property and buildings. Everything in the Network

was owned by Comcast and utilized for providing its services to the customers.

Plaintiffs argue PEI received public funds for these projects because Comcast and KDL

Windstream passed on funds they received from the school boards to PEI for work on these

projects. They contend this made PEI a public body. They also argue that if the school districts

had contracted directly with PEI to install the fiber optic cable that PEI would have been subject

to the IPWA and that the school districts, therefore, cannot circumvent the IPWA by contracting

with private entities (KDL Windstream and Comcast) and having them in turn contract out the

labor. Additionally, plaintiffs maintain PEI was subject to the IPWA because Comcast and KDL

Windstream were public bodies because they were supported in whole or in part by public funds

and PEI was a contractor of these public bodies. Even if KDL Windstream and Comcast were

not public bodies, plaintiff argues PEI is subject to the IPWA because PEI was a subcontractor of

Comcast and KDL Windstream which were under contract for public works and subcontractors

of such contractors are also subject to the IPWA.

As to the Customer Contracts, It is apparent from the KDL Windstream master service

agreements and the Comcast Terms, that they were not “engaged in the construction of public

works.” They were contracting to provide a service. The public entities with whom they

contracted did not obtain an ownership interest in any of the items installed by Comcast or KDL

Windstream. The master service agreements and the Terms explicitly provide that Comcast and

KDL Windstream own the installed items and have the right to remove them. The master service

agreements and the Terms specifically granted to Comcast and KDL Windstream licenses and or

5
easements to use space on or in the customers’ property and buildings for locating the property of

Comcast and KDL Windstream needed to provide services to the customers. The Comcast

agreement expressly acknowledged Comcast’s right to serve other customers with the Network

located in the easement on the customer’s property. 

PEI contracted with Comcast to install the Network and KDL Windstream to install the

equipment and facilities. Plaintiffs worked on these projects. Since these projects were done by

PEI for Comcast and KDL Windstream, they were not public works and were not subject to the

IPWA.

Plaintiffs argue that a construction invoice (Dkt 131-3, p.48) issued by Comcast to the

McLean County School District with the project name “Sugar Creek Elementary Road

Improvement” proves this project was covered by IPWA because this project was, according to

Dean Peter’s deposition testimony, a road widening project, and thus a public work. However,

the invoice’s project description reads “Sugar Elementary is undergoing a large addition to the

existing location where it will require a pole line to be moved to accommodate new turn lanes

and road widening. This will require Comcast to rebuild new facilities to a new pole line.” 

Another invoice with the project name Sugar Creek School Fiber Relocation (Dkt 131-3, p. 45)

clarifies what is going on with the project. Its project description reads “The customer is

planning an extensive addition to an existing location where Comcast has existing fiber circuit at

this location. Unit District No. 5 is requesting that Comcast relocate our fiber path to the

building to accommodate the construction projects so as to not experience any outage from

construction related activity. The new addition would place the new foundation over the top of

the existing fiber route.” It is evident from these project descriptions, that this work was on the

Network as described in the Terms (as discussed above) and thus was work on the property of

Comcast, not the school district. It was not a public work. 

Plaintiffs also contend the holding in People, ex rel. Dept. of Labor v. Sackville

Construction, Inc., 930 N.E.2d 1063 (Ill. App. 2010) compels a finding that Comcast and KDL

Windstream were public bodies because they were publicly funded since they billed and were

paid by the school districts. In Sackville, a private developer contracted with the city to build an

industrial complex on city-owned land. The city agreed to convey title to the real estate to the

developer for $1, to contribute $150,000 (10% of the construction cost) for site construction and

to pay up to $57,000 for site clearance and demolition. Sackville held these contributions by the

city to the developer made the developer a public body for purposes of the IPWA. Sackville is

distinguishable because it involved simply a contribution by the city to the construction of the

developer’s complex. The funds were contributions to the developer not payments in

conjunction with a service being provided to the city. A structure was being built and part of the

funding for that structure came from the city’s public funds. Here, payments to Comcast and

KDL Windstream from the school districts were payments pursuant to service contracts. The

payments only occurred in conjunction with the provision of the ongoing services and terminated

when the services were no longer being provided. The cases in which non-governmental entities

have been found to be supported by public funds deal with entities receiving funds by grant or

appropriation or to provide services to the general public not in payment for services provided to

the government entity. Id.; Opportunity Center of Southeastern Illinois v. Bernardi, 562 N.E.2d

1053 (Ill.App. 1990) (received one-half its funding from public funds to provide programs for

6
handicapped and developmentally disabled adults); People ex rel. Bernardi v. Illini Community

Hosp., 516 N.E.2d 1320, 1321 (Ill. App. 1987) received tax revenues collected for its benefit). 

KDL Windstream and Comcast were not “institution[s] supported in whole or in part by public

funds” and , therefore, were not public bodies. Accordingly, PEI was not under contract with a

public body under its contracts with Comcast and KDL Windstream. 

Plaintiffs also maintain PEI is a public body but the above discussion also shows this not

to be the case. The only possible way PEI could have been considered a public body was if it had

been an “institution supported in whole or in part by public funds.” Plaintiffs contend PEI was

such an institution because it got paid by Comcast and KDL Windstream with funds they

received from public bodies. But, as noted above, the payments from the governmental entities

to Comcast and KDL Windstream were payments for services. Comcast and KDL Windstream

did not become “institution[s] supported in whole or in part by public funds” by receiving these

payments. Likewise, PEI did not become such an institution when it got paid by Comcast and

KDL Windstream for work on their service projects. PEI was not a public body. 

Based on the foregoing, work performed on projects related to the Customer Contracts

was not subject to the IPWA. Defendants are entitled to summary judgment on any claims

plaintiffs are making for work performed by plaintiffs for PEI on jobs PEI performed for KDL

Windstream in furtherance of KDL Windstream providing services to its customers pursuant to

master services agreements (containing the provisions discussed above found in Dkt # 120-8 and

120-9 or provisions substantially similar thereto) that KDL Windstream entered with its

customers. Defendants also are entitled to summary judgment on any claims plaintiffs are

making for work performed by plaintiffs for PEI on jobs PEI performed for Comcast in

furtherance of Comcast providing services to its customers pursuant to any agreement

(containing the Terms discussed above found in Dkt # 131-4 pp. 31-35 or provisions

substantially similar thereto) that Comcast entered with its customers.

The court next looks to the State Contract. The record contains a contract between

Cinergy Communications and the State of Illinois. (Dkt # 131-4, pp.48-63) as well as a renewal

of that contract between the State of Illinois and “Windstream (formerly Cinergy)” (Dkt # 131-4,

pp. 38-47). In the contract’s “description of supplies and services” section, paragraph 2.1 states:

“the Illinois Department of Central Management Services (CMS) is establishing a contract for

the purchase of maintaining and upgrading the State’s high-speed telecommunications network to

be up to task per our legislative mandate for the K-20 environment as well as to maintain highspeed connectivity for agency to agency and agency to CMS communications.” Paragraph 2.2

states: “The goal is to enable CMS to acquire high speed, diverse connectivity between the sites

identified in Attachment A and to ensure the ability to upgrade these circuits in the future if

warranted.” The contract provides for a 36 month term and provides for the payment of monthly

service fees and an initial non-recurring service fee “for each service identified above.”

(Paragraph 3.7). The services “identified above” are five circuits. (Paragraph 3). Paragraph 2.8

states “the Parties agree that Vendor is not providing the State any supplies under this Contract.” 

This contract is, at least in part, a service contract. However, unlike Customer Contracts

discussed above, this contract does not clearly provide that ownership of the network being

constructed by the vendor is the property of the vendor. Paragraph 4.6 provides “All work

performed . . . created by Vendor under this Contract, whether written documents or data, goods

7
or deliverables of any kind, shall be deemed work-for-hire under copyright law and all

intellectual property and other laws and the State of Illinois is granted sole and exclusive

ownership to all such work, unless otherwise agreed hereunder. Vendor hereby assigns to the

State all right, title, and interest in and to such work including any related property rights and/or

waives any and all claims that Vendor may have to such work including any so-called ‘moral

rights’ in connection with the work.” While this language appears to be primarily concerned

with intellectual property rights, it could fairly be read to grant the State “sole and exclusive

ownership” of all work performed, encompassing the infrastructure constructed to provide the

services. A genuine issue of material fact exists as to whether the State is the owner of

infrastructure installed by KDL Windstream under this contract and thus whether this contract

was for the construction of public works. If it was, a genuine issue of material fact exists as to

whether PEI was a subcontractor of KDL Windstream under this contract and, therefore, subject

to the IPWA for worked performed in furtherance of KDL Windstream’s performance under the

contract.

Defendants contend plaintiffs have presented no evidence that any of them performed any

work related to this contract between KDL Windstream and the State. It is undisputed that

plaintiffs, Thor, Madero and Martin performed work for PEI at Western Illinois University on

July 23, 2009 and that plaintiff Crager’s “Daily Production Report” for June 11, 2009 lists 200 S.

Wyman and Boone Co. Schools as “JOB Site.” It is also undisputed that plaintiff Buffo’s

production report for April 9, 2010 lists 200 S. Wyman St. as “JOB Site.” Western Illinois

University and the State of Illinois Building located at 200 S. Wyman Street, Rockford, Illinois,

are both site locations identified in this contract. Drawing all inferences from this evidence in

favor of plaintiffs, a genuine issue of material fact exists as to whether Thor, Madero, Martin,

Crager, and Buffo performed this work for PEI as a subcontractor of KDL Windstream in

furtherance of KDL Windstream’s performance under the contract.

Defendants seek summary judgment on Madero’s FLSA retaliation claim set forth in

Count IV. The FLSA provides that it is unlawful for any person “to discharge or in any other

manner discriminate against an employee because such employee has filed any complaint or

instituted or caused to be instituted any proceeding under or related [the FLSA].” 29 U.S.C. §

215(a)(3). Madero claims defendants discharged him because he filed this case, which includes

a claim for failing to pay overtime rates as required by 29 U.S.C. § 207. Defendants contend

Madero has failed to establish a prima facie case of retaliation because he cannot demonstrate a

causal connection between his filing of this lawsuit and the termination of his employment. They

also maintain he cannot show the non-retaliatory reason given for his termination – the need to

reduce costs due to insufficient work – was a pretext.

In order to withstand a motion for summary judgment, Madero may proceed under either

the direct method or the indirect method to establish a prima facie case of retaliation under the

FLSA. Kasten v. Saint-Gobain Performance Plastics Corp., 703 F.3d 966, 972 (7th Cir. 2012). 

Madero is proceeding under the direct method. Under the direct method, he “must show: (1) that

he engaged in protected expression; (2) that he suffered an adverse employment action; and (3)

that a causal link existed between the protected expression and the adverse action.” Id. Under the

direct method, he “may rely on either direct evidence of a causal link or circumstantial evidence

that is relevant and probative on any of the elements of a direct case of retaliation.” Id. 

8
Madero clearly engaged in protected expression by filing this lawsuit claiming a violation

of the FLSA’s overtime provisions and he clearly suffered an adverse employment action when

his employment was terminated. Only the existence of a causal link is in dispute.

In a declaration dated November 26, 2012, and filed with the court on September 30,

2013 (Dkt # 59-1 pp. 9-10) Madero stated: “On September 17, 2012, Dean and Josh Peters told

me they were laying me off because they did not have enough work for me. They also said that

they did not have money to pay me because they had to defend this lawsuit.” Later, on

September 24, 2014, Madero testified in his deposition that “[w]hen they fired me they told me

the reason for firing me was because they no longer could pay for me to be employed there

because of the lawsuit that was going on.” (Dkt # 131-2, p.67; Dep. P. 80). Dean testified in his

deposition that he told Madero at the time he laid him off that “we were low on funds and having

to deal with the lawsuit, we couldn’t afford to keep him.” (Dkt # 131-1, p. 76; Dep. P. 160). 

Defendants argue this statement made by Dean shows defendants were motivated by financial

concerns not retaliation and that the fact Madero was terminated in September 2012, four months

after the lawsuit was filed, makes the termination too remote from the protected activity to be

considered retaliatory.

“The mere passage of time is not legally conclusive proof against retaliation.” Malin v.

Hospira, Inc., 762 F.3d 552, 559 (7th Cir. 2014) (internal quotation marks and citations omitted.) 

Here, Dean specifically mentioned the lawsuit at the time he terminated Madero and gave

“having to deal with the lawsuit” as a reason PEI “couldn’t afford to keep [Madero].” While it is

certainly plausible financial constraints would have led to Madero’s lay-off without him taking

the protected action of filing the lawsuit, it is also plausible (particularly in light of Dean’s

statement to Madero) that Madero was laid-off in retaliation for filing the suit which required

defendants to “deal with the lawsuit” and its financial as well as other consequences. See Egan

v. Freedom Bank, 659 F.3d 639 (7th Cir. 2011). Summary judgment on Madero’s FLSA

retaliation claim must be denied.

Defendants argue Josh is entitled to summary judgment on all counts because he is not an

employer as defined in the FLSA. The FLSA includes within the definition of “employer” “any

person acting directly or indirectly in the interest of an employer in relation to an employee.” 29

U.S.C. § 203(d). The IMWL has a similar definition of “employer” including within the

definition “any person or group of persons acting directly or indirectly in the interest of an

employer.” 820 ILCS 105/3(c). The IMWL and FLSA parallel each other and the same analysis

generally applies to both. Morgan v. Speakeasy, LLC, 625 F.Supp. 2d 632, 650 (N.D. Ill. 2007)

(Nolan, Mag.J.). A person who uses his authority over employees to violate their rights under the

FLSA is subject to liability under the FLSA. Luder v. Endicott, 253 F.3d 1020, 1023 (7th Cir.

2001). Courts have considered certain factors in analyzing whether a person is an employer

under FLSA. Arteaga v. Lynch, No. 10 C 1444, 2013 WL 5408580, *13 (N.D. Ill. Sept. 26,

2013) (Pallmeyer, J.). Factors considered include “ whether the alleged employer (1) had the

power to hire and fire employees, (2) supervised and controlled employee work schedules or

conditions of employment, (3) determined the rate and method of payment, and (4) maintained

employment records.” Id. (internal quotation marks and citations omitted.) No one factor is

dispositive. Id. Rather, the “court considers the totality of the circumstances that underscore the

economic reality of the employment relationship.” Id. 

9
Dean is the president of PEI and is the majority shareholder. Josh is the vice president

and a shareholder of PEI. Josh’s initial capital contribution at formation of PEI gave him a forty

percent ownership interest. Josh has signature authority on PEI’s checking account and has

authority to sign employee payroll checks. Dean testified in his deposition that Josh shares in

the day-to-day operations of the company. Josh can make recommendations, which Dean takes

seriously, about whether to hire or fire an employee and how to pay an employee. Josh directs

and supervises the work of employees.

 Madero testified Josh set his pay rate. Josh told Madero he was going to be paid $17 per

hour. Madero objected and Josh said: “Okay. We’ll pay you $18 an hour instead of $17 an

hour.” (Dkt # 131-2, p.66). Otherwise, the record does not show Josh determined the rate or

method of employee pay but it shows he had input, which Dean took seriously, on these issues. 

The record shows Madero believed PEIswitched its compensation policies to pay all employees

on an hourly basis because Josh wanted that change. His reason for believing this is that when

Dean said he was not going to “switch us to hourly” Josh “punched a hole through the door. 

Dean and Josh went back and had a conversation. Two weeks later we’re on hourly.” (Dkt #

131-2, p.32.). In meetings, which Dean also attended, Josh told Madero that Madero was being

terminated and terminated another plaintiff, Sebright. 

The record presented does not indicate Josh maintained employment records. Plaintiffs

suggest the fact Josh’s name was written on the “Supervisor” line on the weekly reports prepared

by plaintiffs is an indication Josh “had a hand in processing and maintaining employment

records.” This is mere speculation. 

While the evidence presented in the summary judgment record is not particularly strong

in supporting plaintiffs’ claim that Josh is an employer, there is some evidence to support this

claim. The court denies defendants’ motion for summary judgment as to Josh.

For the foregoing reasons, defendants’ motion [116] for partial summary judgment is

granted in part and denied in part. Summary judgment is granted on any IPWA claims plaintiffs

are making for work performed by plaintiffs for PEI on jobs PEI performed for KDL Windstream

in furtherance of KDL Windstream providing services to its customers pursuant to master

services agreements (containing the provisions discussed above found in Dkt # 120-8 and 120-9

or provisions substantially similar thereto) that KDL Windstream entered with its customers. 

Defendants also are entitled to summary judgment on any IPWA claims plaintiffs are making for

work performed by plaintiffs for PEI on jobs PEI performed for Comcast in furtherance of

Comcast providing services to its customers pursuant to any agreement (containing the Terms

discussed above found in Dkt # 131-4 pp. 31-35 or provisions substantially similar thereto) that

Comcast entered with its customers. Otherwise, the motion for partial summary judgment is

denied. The parties are ordered to contact Magistrate Judge Johnston within 28 days to arrange a

settlement conference or mediation.

ENTER:

Date: 5/12/2015

 

 United States District Court Judge

 Electronic Notices. (LC)

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