1 

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN 

DISTRICT OF ILLINOIS EASTERN DIVISION 

JAMES BRAND, Individually, and on 

Behalf of All Others Similarly Situated, 

 Plaintiffs, 

 v. 

COMCAST CORPORATION and 

COMCAST CABLE 

COMMUNICATIONS MANAGEMENT, 

LLC 

 Defendants. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Case No. 12-cv-1122 

Hon. Young B. Kim 

(JURY TRIAL DEMANDED) 

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISMISS COUNT II OF 

PLAINTIFF’S AMENDED COMPLAINT

Plaintiff, JAMES BRAND, individually and on behalf of all other similarly situated 

employees, by and through his undersigned attorneys, responds in opposition to Defendants’ 

motion to dismiss. (Dkt. No. 44). Plaintiff states as follows: 

I. Rule 12(b)(6) LEGAL STANDARD

In ruling on a motion to dismiss under Rule 12(b)(6), the Court must “accept as true all 

factual allegations contained in the complaint” and make reasonable inferences in favor of the 

plaintiff. Ashcroft v. Iqbal, 556. U.S. 662, 677 (2009). A court may grant a motion to dismiss 

only if a plaintiff’s complaint does not state a claim for relief “that is plausible on its face.” Id; 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the miscount alleged.” Ashcroft, 556 U.S at 663. In ruling on a 12(b)(6) 

Case: 1:12-cv-01122 Document #: 50 Filed: 08/16/12 Page 1 of 8 PageID #:1910
2 

motion, the Court should decide the adequacy of the complaint, not determine the merits of the 

case. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). 

II. ARGUMENT

A. Plaintiff has sufficiently plead a “contract or agreement” under the IWPCA. 

Although the IWPCA does not establish a substantive right to overtime pay on its own, it 

provides a cause of action where an employer fails to pay an employee compensation owed 

“pursuant to an employment contract or agreement between the two parties, whether the amount 

is determined on a time, task, piece, or other basis of calculation.” 820 ILCS § 115/2. Under the 

IWPCA, a plaintiff need not allege a “valid, enforceable contract.” Catania v. Local 4250/5050 

of Commc’ns Workers of Am., 359 Ill.App.3d 718 (Ill.App.Ct. 2005). Rather, a claim under the 

IWPCA must allege “the existence of either an employment contract or agreement.” Id.; 820 

ILCS § 115/2. “[T]he language of the statute on this point is crucial because an agreement is 

broader than a contract and requires only a manifestation of mutual assent on the part of two or 

more persons.” Cantina, 359 Ill.App.3d at 724. 

Plaintiff has plead sufficient detail to give Defendants notice of the basis of his IWPCA 

claim. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 

court to draw the reasonable inference for the misconduct alleged.” Ashcroft, 556 U.S. at 678. 

Plaintiff alleges, “Defendants, by agreement, promised to pay Plaintiff and class members an 

hourly rate for all time worked and overtime pay when they worked in excess of 40 hours per 

week. Amongst other places, this agreement is documented in Defendants’ handbooks, which 

Plaintiff and class members were required to review and acknowledge via signature.” (Amend. 

Compl. at ¶11.). Plaintiff has given notice to Defendants not only of the agreement under the 

IWPCA, but also the terms of the agreement, and at least one place where the agreement has 

Case: 1:12-cv-01122 Document #: 50 Filed: 08/16/12 Page 2 of 8 PageID #:1911
3 

been memorialized. The allegation is more than sufficient to satisfy the threshold pleading 

requirements of an IWPCA agreement. See, e.g. White v. VNA Homecare, Inc., 11-971-GPM, 

2012 WL 1435432 (S.D. Ill. Apr. 25, 2012) (finding the allegation, “Plaintiff and the class 

regularly worked more than 40 hours per week [. . .] pursuant to a contract and/or agreement to 

do so and receive overtime pay” “clearly” alleged the existence of an IWPCA contract or 

agreement); Santiago et al. v. Radioshack Corp., 11 C 3508 (N.D.Ill. February 10, 2012) 

(Gottschall, J.) (finding allegations that defendant was to compensate employees “based upon the 

number of hours worked” and allowed employees to work “without proper overtime 

compensation” was sufficient to allege an IWPCA “agreement”) (attached hereto as Ex. A); 

Sanchez v. Haltz Const., Inc. 09 C 7531, 2012 WL 13514 (N.D. Ill. Jan. 4, 2012) (finding an 

allegation that plaintiffs performed work with the understanding they would be paid was 

sufficient to plead an IWPCA violation). 

Defendants argue that Plaintiff has not adequately plead a “contract or agreement” under 

the IWPCA. Notably, Defendants rely on summary judgment cases where the issue is whether 

the plaintiff has presented enough evidence to establish a genuine issue of fact as to the presence 

of an agreement under the IWPCA. Plaintiff, of course, is not required to plead all the facts 

which support his IWPCA claim in the Complaint. In fact, in one of the cases cited by 

Defendants, Hall v. Sterling Park Dist., No. C 50116, 09 C 50146, 2011 WL 1748610, the 

district court denied a motion to dismiss plaintiff’s IWPCA claim. In that case, the plaintiff’s 

IWPCA claim was not dismissed until summary judgment when, after discovery, the plaintiff 

failed to support the allegation. 

 Defendants further argue that Plaintiff cannot rely on an implied agreement. Plaintiff has 

not alleged that the IWPCA agreement is implied by the FLSA or IMWL. In fact, Plaintiff has 

Case: 1:12-cv-01122 Document #: 50 Filed: 08/16/12 Page 3 of 8 PageID #:1912
4 

not alleged any “implied” agreement. Plaintiff alleged an express agreement between the parties 

regarding overtime compensation for time worked. 

Defendants also assert that Plaintiff has provided “almost no facts” regarding the 

agreement. This too is without merit. Plaintiff has provided Defendants with the terms of the 

agreement and alleged that the agreement is memorialized in Defendants’ Employee Handbook 

“amongst other places.” This is enough “heft” to support an IWPCA claim. Plaintiff is not 

required to state more “detailed factual allegations” in order to allege a violation of the IWPCA. 

See Twombly at 555. 

B. There is ample evidence that an agreement, as alleged by Plaintiff, exists. 

Although Plaintiff is not required at this stage of litigation to set forth all the facts 

evidencing an agreement, Defendants have produced such evidence both in their document 

production, as well as in other pleadings in this same case. 

First, Defendants’ Employee Handbooks clearly state, “Overtime compensation will be 

paid to employees in non-exempt positions at a rate of one and one-half (1.5) of the regular rate 

for all hours worked over forty (40) hours during the workweek [.]” (See, e.g. 

COMCAST_WAGE00007021, attached hereto as Ex. B) The disclaimer in the Handbooks, 

which Defendants rely on to “defeat any IWPCA claim” states that it does not create a contract 

of employment. (Dkt. No. 45, p. 6). Plaintiff, however, does not need to allege he had a legally 

binding employment contract with Defendants; the IWPCA requires only an agreement among 

the parties. Cantina, 359 Ill.App.3d at 724; 820 ILCS § 115/2. Courts in this district have held 

that such disclaimer language does not defeat a plaintiff’s IWPCA claim. See, e.g. Hall v. 

Sterling Park District 08 C 50116 (N.D.Ill. Dec. 10, 2008) (Reinhard, J.) (attached hereto as Ex. 

C) (declining to dismiss plaintiff’s IWPCA claim on the basis of policy manual disclaimer 

Case: 1:12-cv-01122 Document #: 50 Filed: 08/16/12 Page 4 of 8 PageID #:1913
5 

language and noting “[t]he existence of disclaimer language does not foreclose an inquiry into 

[matters concerning overtime.]”); Bollie v. Board of Trustee Waubonsee Community College, 07 

C 01382 (N.D.Ill July 31, 2007) (Shadur, J.) (oral ruling) (holding an “agreement” within the 

meaning of the IWPCA is not defeated by disclaimers) (Transcript attached as Ex. D).

Moreover, Defendants’ current position that the Handbooks cannot be used as evidence 

of an agreement is inconsistent with Defendants’ other pleadings in this case. On July 17, 2012, 

Defendants filed a Response in Opposition to Plaintiffs’ Motion to Conditionally Certify a 

Collective Action and Facilitate Notice. (Dkt. No. 41). In arguing against certification, 

Defendants themselves rely on the Employee Handbook as an agreement. (Id., pp. 5-6). In fact, 

Defendants attach portions of the Employee Handbook and cite to Employee Handbook 

acknowledgements as evidence that Plaintiff and opt-in Plaintiffs were aware of and agreed to

the polices in Defendants’ handbook. (Id., Dkt. No. 42-6; Dkt. No. 42-7). Defendants cannot 

now cherry-pick which parts of the Handbook constitute an “agreement” to suit their current 

argument. 

 In additional support of their response, Defendants admit, “Comcast expressly requires 

that employees report their time accurately and be paid for all time worked.” (Dkt No. 41, p. 5). 

Defendants additionally attach timekeeping training materials regarding their overtime practices. 

(Dkt. No. 42-4) (“Comcast will you pay for all the time you work . . .without exception. If you 

work overtime, you will usually be paid one and a half times your normal rate unless the state 

where you work has different overtime rules.” (p. 4)). These materials evidence an agreement 

between the parties regarding overtime pay; and, unlike Defendants’ Handbooks, the training 

materials are not prefaced by a disclaimer. 

Case: 1:12-cv-01122 Document #: 50 Filed: 08/16/12 Page 5 of 8 PageID #:1914
6 

Finally, the parties’ exchange of discovery thus far has yielded additional evidence that 

an agreement, as alleged by Plaintiffs, exists. For example, Defendants have produced employee 

announcements and policy materials that reference the agreement. See, e.g. 

COMCAST_WAGE00014668 (attached hereto as Ex. E) (“If you’re an hourly employee, 

overtime will now be calculated based on total week hours based on a normal 40-hour work 

week.”); COMCAST_WAGE00014687 (attached hereto as Ex. F) (“Overtime compensation will 

be paid to non-exempt employees at a rate of one and one-half (1.5) the regular hourly rate for all 

hours worked over forty (40) hours during the workweek.”) Thus, even if the summary 

judgment standard applied in this instance (it does not), Defendants have produced ample 

evidence to support the existence of an “agreement” under the IWPCA.1

III. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss should be denied. To the 

extent the Court grants the motion, Plaintiff respectfully requests the opportunity to amend and 

correct whatever deficiencies the Court finds as leave to amend would not prejudice Defendants. 

See Kontrick v. Ryan, 540 U.S. 443, 459 (2004) (“[L]eave [to amend] shall be freely given when 

justice so requires.” (quoting Fed. R. Civ. P. 15(a)). 

 

 

1

 Defendants cite numerous cases in which the court granted summary judgment and dismissed an IWPCA claim. 

The cases cited by Defendants involved far less evidence of an agreement than the evidence already attained by 

Plaintiff at this early stage of discovery. See, e.g. DeMarco v. Northrwestern Mem’l Healthcare, No. 10 CV 397, 

2011 WL 3510896 (N.D. Ill. Aug. 10, 2011) (granting summary judgment where plaintiff only cited to her 

complaint as evidence of an IWPCA “agreement”); Stark v. PPM America, Inc., 354 F.3d 666, 672 (7th Cir. 2004) 

(granting summary judgment where plaintiff did not assert an IWPCA claim in his complaint); Skelton v. American 

Intercontinental Univ. Online, 382 F. Supp. 2d 10618 (N.D. Ill. 2005) (granting summary judgment where plaintiff 

only cited to defendant’s handbook in support of his IWPCA claim). 

Case: 1:12-cv-01122 Document #: 50 Filed: 08/16/12 Page 6 of 8 PageID #:1915
7 

Dated: August 16, 2012 Respectfully Submitted, 

/s/ Sarah Brown

Noelle Brennan 

Sarah Brown 

Danielle Hoffmann 

Brennan & Brown, LTD 

20 South Clark Street, Suite 1530 

Chicago, Illinois 60603 

312-422-0001 

www.brennan-brown.com

Ryan Stephan 

Stephan Zouras, LLP 

205 N. Michigan Avenue, Suite 2560 

Chicago, Illinois 60601 

312-233-1550 

www.stephanzouras.com

ATTORNEYS FOR PLAINTIFF 

 

Case: 1:12-cv-01122 Document #: 50 Filed: 08/16/12 Page 7 of 8 PageID #:1916
8 

CERTIFICATE OF SERVICE

I hereby certify that on August 16, 2012 I filed the foregoing PLAINTIFF’S RESPONSE 

TO DEFENDANTS’ MOTION TO DISMISS COUNT II OF PLAINTIFF’S AMENDED 

COMPLAINT with the Clerk of the Court using the CM/ECF system which will provide 

notification of such filing to the e-mail addresses of all counsel of record. 

 RESPECTFULLY SUBMITTED, 

 /s/Sarah Brown 

 One of Plaintiff’s Attorneys 

Case: 1:12-cv-01122 Document #: 50 Filed: 08/16/12 Page 8 of 8 PageID #:1917