UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Melissa Maldonado, Hollie Lord, and )

Linda Hartsell, )

individually under Illinois Wage Laws, )

individually under the Fair Labor Standards )

Act and as the Collective Representative )

under the Fair Labor Standards Act in a )

Collective Action, )

) No. 12 C 4087

Plaintiffs, )

) Judge Sara L. Ellis

v. )

)

Golren Enterprises Inc., )

d/b/a Corfu Restaurant, and )

Michele Golegos, John Golegos, and )

George Alimisis, )

)

Defendants. )

OPINION AND ORDER

This suit was brought by Plaintiffs Melissa Maldonado, Hollie Lord, and Lina Hartsell, 

former waitresses at the Corfu restaurant (“Corfu”) against Defendants, Corfu’s owners and 

operators. Before the Court are Plaintiffs’ [118] and Defendants’ [88] motions for partial 

summary judgment as well as Defendants’ motions to strike Plaintiffs’ Rule 56.1 statements of 

undisputed material facts [126, 130]. The Court grants Defendants’ motion for summary 

judgment as it relates to Plaintiff Melissa Maldonado’s claim for relief under Title VII. Ms. 

Maldonado is not entitled to this relief as a matter of law because she has neither alleged nor 

offered any evidence to support that she was discriminated against as a result of her gender. The 

Court denies both parties’ motions for summary judgment as they relate to the Fair Labor 

Standards Act (“FLSA”) and Illinois Minimum Wage Law (“IMWL”) claims. Whether Plaintiffs 

received all tips to which they were entitled is a disputed issue of material fact, as is the issue
regarding whether Plaintiffs were properly compensated for work they performed before the start 

of their shifts. Because these issues underlie the FLSA and IMWL claims, these claims are not 

suitable for summary judgment. 

BACKGROUND1

Plaintiffs Melissa Maldonado, Hollie Lord, and Linda Hartsell worked as waitresses at 

Corfu in St. Charles, Illinois, which Defendants John Golegos, Michele Golegos, and George 

Alimisis own and/or operate. For their work, Plaintiffs received tips and an hourly salary of 

approximately $4.95. Corfu maintains a tip pool that requires servers to contribute 10% of their 

tips to the busboys. Corfu’s stated policy is that only waitresses contribute to the tip pool and 

only busboys receive funds from the pool. During at least 2010 and 2011, Corfu’s management 

maintained a tip pool log. Every week, each server wrote on the log the amount of tips she 

contributed to the busboys that week. 

At all relevant times, Corfu customers paid for their meals at a central cash register, using 

either cash or a credit card. Some customers who paid in cash would leave tips at the register, 

while others would return cash tips to their table. Customers who paid with a credit card had the

customary option of adding a tip on the credit card receipt. Therefore, Plaintiffs relied on 

Corfu’s hosts and managers to pass along many of their tips. The receipts, which were stored in 

a pile near the cash register, did not include any information to identify the customer’s table 

number or waitress. As a result, when a customer paid and tipped using a credit card, the server 

1 The facts in the background section are taken from the parties’ Local Rule 56.1 statement of facts and 

from the evidentiary support filed by each party on the record. Plaintiffs’ Local Rule 56.1 statements 

of fact left much to be desired in terms of clarity. Defendants have moved to strike more than 40 of 

Plaintiffs’ statements of fact. Defendants’ motions to strike [126, 130] are granted in part and denied 

in part. In accordance with its regular practice, the Court has considered the parties’ specific 

objections and responses and has included in this background section only those portions of the 

statements and responses that are appropriately presented, supported, and relevant to the resolution of 

these motions. 

2

 
generally did not know the amount of the tip the customer had left. Plaintiffs assert that even 

when they attempted to identify the amount of a credit card tip by looking through the receipts, 

they were unable to identify which receipts corresponded to their section unless they knew the 

customer’s name or some other identifying information. 

Each day, Corfu’s host recorded on a piece of paper the dollar value of the credit card tips 

each waitress received. Two or three times each week, Defendants used the daily tip sheets to 

calculate each waitress’ total tips for that period. Defendants kept the daily tip sheets for 

approximately ten days or two weeks, after which time they would discard the sheets. Plaintiffs 

assert that in calculating their tips, Defendant John Golegos rounded their tips down to the 

nearest whole dollar. Plaintiffs state that, for example, if a waitress’ tips totaled $30.75, Mr. 

Golegos would only give the waitress $30. Plaintiffs state that Mr. Golegos did this throughout 

their employment at Corfu, but offer no specifics with regard to any particular instance that they 

were short-changed. Defendants deny that Plaintiffs ever received less than all of the tips they 

had earned. In addition to their own testimony, Defendants submit affidavits of nine waitresses 

who state that Mr. Golegos never failed to pay them their entire tips. 

Teddy Mack occasionally manned Corfu’s central cash register. Plaintiffs refer to Mr. 

Mack as Corfu’s “night manager.” Defendant John Golegos testified that Mr. Mack is his cousin 

and that he served as Corfu’s host whenever he wanted to work. Mr. Golegos further states that 

the restaurant did not pay Mr. Mack for his work. 

Ms. Maldonado testified that she personally witnessed Mr. Mack stealing credit card tips 

that customers had given to her. Additionally, Plaintiffs state that sometimes when Mr. Mack 

worked the register they would receive no tip from multiple tables in a given shift. According to 

Plaintiffs, searching through the credit card receipts proved fruitless because they could not 

3
identify which receipts corresponded to their tables. Ms. Hartsell testified that on at least one 

occasion, Mr. Mack refused to let her inspect the credit card receipts. But again, Plaintiffs 

cannot identify the date, time, amount of the tip, customer’s name, or any other details of any 

instance in which Mr. Mack allegedly stole their tips. 

Plaintiffs complained to Defendant Michele Golegos about Mr. Mack. Mrs. Golegos 

informed her husband of the complaints, but she did not identify to her husband the waitresses 

who had complained. Mr. Golegos investigated these complaints by asking some waitresses, but 

not Plaintiffs, whether Mr. Mack had stolen their tips. The waitresses responded that they did 

not work with Mr. Mack or that he had not taken their tips. On the basis of these responses and 

the nine corroborating affidavits from Corfu waitresses, Defendants deny that Mr. Mack ever 

misappropriated any waitress’ tips. 

Plaintiff Melissa Maldonado worked at Corfu from approximately 1999 until November 

of 2011. In 2009, Ms. Maldonado began dating Ari Golegos, an occasional host at Corfu and the 

son of Defendants John and Michele Golegos. In September of 2010, Ms. Maldonado and Ari 

Golegos became engaged to be married. The two shared a townhouse in the town of Bartlett, 

Illinois. The engagement ended one year later. After the break-up, Ari left the townhouse and 

stayed with his mother. Ms. Maldonado alleges that after her break-up with Ari, Mrs. Golegos 

excessively nit-picked her work and that Mrs. Golegos and Corfu’s other hosts 

disproportionately sat problematic customers in her section. Ms. Maldonado also states that Mrs. 

Golegos encouraged customers to ask Ms. Maldonado about her personal life. Defendants 

respond by pointing to the affidavits of nine Corfu waitresses, who state that following the breakup, Ms. Maldonado was not treated any differently from other wait staff. 

4
On or about November 15, 2011, while at Corfu during business hours, Ms. Maldonado 

and Mrs. Golegos had an argument that culminated in Mrs. Golegos firing Ms. Maldonado. The 

parties offer differing versions of the event. Ms. Maldonado testified that Mrs. Golegos began 

the confrontation by following Ms. Maldonado around the restaurant as she performed her work, 

repeatedly asking, “What are we going to do about the townhouse?” and telling her “You can’t 

stay there.” Ms. Maldonado testified that she asked Mrs. Golegos to leave her alone and told her 

that the topic should not be discussed in the restaurant because it had nothing to do with work. 

Defendants assert that the confrontation began when Ms. Maldonado confronted Mrs. Golegos, 

accusing her of stealing Ms. Maldonado’s engagement ring from the townhouse that Ms. 

Maldonado and Ari Golegos shared. Defendants assert that Ms. Maldonado marched up and 

down the aisles of the restaurant, growing heated in front of customers. Mrs. Golegos testified

that Ms. Maldonado said to her, “You are not my boss. You are nothing.” At the end of this 

confrontation, Mrs. Golegos fired Ms. Maldonado. Ms. Maldonado denies that she yelled in the

restaurant, and asserts that even if she did, other waitresses were not fired after having outbursts 

in the restaurant.

Plaintiff Linda Hartsell worked as a waitress at Corfu for approximately six months from 

September 2009 until March or April of 2010. Ms. Hartsell states that she suspected Mr. Mack 

of stealing her tips because she sometimes received no tips from multiple tables in a shift when 

Mr. Mack worked as a host. Ms. Hartsell further states that she confronted Mr. Mack about this 

on at least two occasions and that Mr. Mack denied that she was owed any tips. Ms. Hartsell 

testified that she asked Mr. Mack to see the charge slips in order to determine whether he had 

stolen any of her tips, but that Mr. Mack refused. Ms. Hartsell asserts that she spoke to Mr.

Golegos about Mr. Mack stealing her tips, but that immediately after this conversation, her hours 

5
were significantly reduced and she was eventually told that she was no longer needed because 

“business was slow.” Ms. Hartsell believes that she was terminated from Corfu because she 

complained about Mr. Mack stealing her tips. 

Plaintiff Hollie Lord worked as a waitress at Corfu for approximately 18 years, 

concluding in March of 2011. Ms. Lord states in her affidavit that Mr. Golegos and Mr. Mack 

stole her tips. She asserts that Mr. Mack shorted her tips by rounding down any amount less than 

a dollar and that Mr. Mack pocketed entire tips that had been left for her on credit cards. 

Plaintiffs also submit the affidavit of Sue James, who is not a party to this suit, but who 

worked as a waitress at Corfu for approximately 7 years, concluding around 2007. Ms. James 

states that she personally witnessed Corfu’s owners and hosts stealing and short-changing tips 

that she and other waitresses were entitled to receive. 

Corfu’s servers were required to sign-in at the start of each shift and sign-out upon the 

shift’s conclusion. Plaintiffs allege that Corfu maintained a policy of requiring its wait staff to 

arrive prior to the start of their shifts. Ms. Maldonado testified that she arrived 30 minutes early 

when she opened the restaurant and 15 minutes early when she relieved another waitress. She 

further testified that during this time she performed work for Corfu’s benefit, including making 

sure tables were orderly and appropriately stocked with condiments, setting up the salad bar, and 

cutting lemons. Ms. Maldonado was not paid for time spent working before the start of her shift. 

Ms. Maldonado states that early in her tenure at Corfu, she wrote her actual arrival time on the 

sign-in sheet, but that Mr. Golegos scratched this out and instead wrote in the start time of Ms. 

Maldonado’s shift. Defendants testify that Ms. Maldonado and other wait staff performed 

minimal work before their shifts began, and that they often chatted amongst each other, drank 

6
coffee, or ate salads rather than working. Mrs. Golegos also testified that she paid the employees 

for whatever time they entered on the time sheet. 

LEGAL STANDARD

Summary judgment obviates the need for a trial where there is no genuine issue as to any 

material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. 

To determine whether a genuine issue of fact exists, the Court must pierce the pleadings and 

assess the proof as presented in depositions, answers to interrogatories, admissions, and 

affidavits that are part of the record. Fed. R. Civ. P. 56 & advisory committee’s notes. The party 

seeking summary judgment bears the initial burden of proving that no genuine issue of material 

fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 

(1986). In response, the non-moving party cannot rest on pleadings alone but must use the 

evidentiary tools listed above to identify specific material facts that demonstrate a genuine issue 

for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). Although a 

bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. 

Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the Court must construe all facts in a light 

most favorable to the non-moving party and draw all reasonable inferences in that party’s favor. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). 

When confronted with cross-motions for summary judgment, the Court is not required to 

grant judgment as a matter of law for one side or the other. Barbara Z. v. Obradovich, 937 F. 

Supp. 710, 716 (N.D. Ill. 1996). Each cross-movant must individually satisfy the stringent 

requirements necessary to obtain summary judgment under Rule 56, as such standards are still 

applicable. McMasters v. United States, No. 98 C 6413, 2000 WL 336549, at *2 (N.D. Ill. Mar. 

28, 2000), aff’d, 260 F.3d 814 (7th Cir. 2001). On cross-motions for summary judgment, the 

7
Court must consider the burden of proof that each party would bear on each issue at trial and 

assess the motions in light of that burden. Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 

(7th Cir. 1997).

ANALYSIS

Before the Court are cross-motions for partial summary judgment. Plaintiffs seek 

summary judgment on Counts I, II, and III of the amended complaint. In Count I, Ms. 

Maldonado claims that she was discriminated against in violation of Title VII of the Civil Rights 

Act. Counts II and III assert that Plaintiffs did not receive adequate compensation under the 

FLSA and the IMWL. Counts II and III can be divided into tip claims and off-the-clock work 

claims. In these claims, Plaintiffs allege (a) that Mr. Golegos and Mr. Mack stole Plaintiffs’ tips, 

(b) that Corfu’s tip pool violated labor laws because Defendants did not actually provide pooled 

tips to the busboys, and (c) that Defendants failed to compensate Plaintiffs for work performed 

before Plaintiffs’ shifts began. Defendants seek summary judgment on Ms. Maldonado’s Title 

VII claim as well as Plaintiffs’ claims that Mr. Golegos and Mr. Mack stole their tips and 

retained pooled tips for themselves. Defendants do not seek summary judgment on Plaintiffs’

claims for off-the-clock work. Nor do Defendants apparently move for summary judgment on 

Count III’s tip claims as they relate to Plaintiffs other than Ms. Maldonado. Finally, neither 

party seeks summary judgment with regard to Ms. Hartsell’s FLSA claim for retaliatory 

termination. 

I. Ms. Maldonado’s Gender Discrimination Claim

Defendants seek summary judgment on Count I, Ms. Maldonado’s claim that she was 

subject to gender discrimination. In this count, Ms. Maldonado contends that she was treated 

differently than her similarly situated colleagues as a result of ending her consensual sexual 

8
relationship with Ari Golegos. Ms. Maldonado asserts that this differential treatment culminated 

in her termination from Corfu. 

Defendants argue that Ms. Maldonado’s Title VII claim must fail because she cannot 

prove that she suffered differential treatment and that Defendants had a valid, non-pretextual 

reason to terminate her employment. Ms. Maldonado responds to Defendants’ motion by citing 

her own testimony that she was treated differently than other similarly situated employees. 

Maldonado identifies disputed questions of fact related to this claim, including whether her 

behavior warranted dismissal or whether she yelled at Mrs. Golegos during their argument on 

November 15, 2011. 

Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any 

individual, or otherwise to discriminate against any individual with respect to his compensation, 

terms, conditions, or privileges of employment, because of such individual’s race, color, religion, 

sex, or national origin.” 42 U.S.C.A. § 2000e-2. An employee alleging sex discrimination under 

Title VII can proceed by presenting direct or indirect evidence of discriminatory intent. “Direct 

evidence essentially requires an admission by the decision-maker that his actions were based on 

the prohibited animus.” Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000). The 

indirect method sets out a three-step process. Ms. Maldonado must first make a prima facie case 

of discrimination. Defendants can defeat her case by offering a non-discriminatory reason for 

their action. However, Ms. Maldonado can overcome this second step by demonstrating that 

Defendants’ explanation is pretext. Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 

2004). Although the burden of production shifts to Defendant during the second step of this 

analysis, Ms. Maldonado bears the burden of persuasion at all times. Id. at 508. To establish a 

prima facie case, Ms. Maldonado must demonstrate that: (1) she is a member of a protected 

9
class, (2) she was performing her job satisfactorily, (3) she suffered an adverse employment 

action, and (4) at least one similarly situated employee who was not a member of her protected 

class was treated more favorably. Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 978 (7th 

Cir. 2004). 

Here, because Ms. Maldonado has not offered any evidence that her alleged mistreatment 

was driven by her gender, she must proceed with indirect evidence. But Ms. Maldonado cannot

prevail on the indirect method because she has not established a prima facie case. Maldonado 

seems to assume that her protected class is determined by her relationship with Ari Golegos. But 

courts in this Circuit have rejected this definition. Ms. Maldonado’s protected class is 

determined by her gender, not her sexual relationship. Blozis v. Mike Raisor Ford, Inc., 896 F. 

Supp. 805, 807 (N.D. Ind. 1995); O’Patka v. Menasha Corp., 878 F. Supp. 1202, 1206 (E.D. 

Wis. 1995) (“‘Sex’ discrimination means discrimination based on gender, not upon sexual 

activity or relationships.”); Piech v. Arthur Andersen & Co., S.C., 841 F. Supp. 825, 829 (N.D. 

Ill. 1994) (citing DeCintio v. Westchester County Med. Ctr., 807 F.2d 304, 306–07 (2d Cir. 

1986)). Therefore, to make a prima facie case, Ms. Maldonado must demonstrate that a similarly 

situated male employee was treated more favorably than she. She has not offered any evidence

in this regard. Instead, she contends that other female waitresses were allowed to yell inside the 

restaurant without being fired. This is not relevant to Ms. Maldonado’s Title VII claim because 

Corfu’s female waitresses are within the same protected class as Ms. Maldonado. Because Ms. 

Maldonado cannot demonstrate that similarly situated male employees were treated differently 

than she was treated, she has not satisfied her burden under Title VII.

Moreover, courts in this district bar plaintiffs from bringing Title VII sex discrimination 

claims “where the conduct at issue stems solely from the harasser’s animosity arising from a 

10
failed romantic relationship.” Kaminski v. Freight-A-Ranger, Inc., No. 01 C 4937, 2002 WL 

31174461, at *3 (N.D. Ill. Sept. 30, 2002). When a claim is based on vindictiveness in response 

to a failed consensual relationship, the Court presumes that any differential treatment resulted 

from the failed relationship, not the plaintiff’s gender. Keppler v. Hinsdale Twp. High Sch. Dist. 

86, 715 F. Supp. 862, 869 (N.D. Ill. 1989). Again, Ms. Maldonado has not offered any evidence 

that her employer discriminated against her because she is a woman, rather she claims that the 

discrimination stems from her failed relationship with Ari Golegos. This contention torpedoes

her Title VII claim. In Keppler, the court granted summary judgment in favor of the defendant 

even after finding that the defendant “embarked on a campaign to denigrate [the plaintiff] in the 

eyes of [their employer], with the ultimate goal of having her removed from her administrative 

position.” Id. The court’s ruling was based on finding that the defendant’s conduct was not 

motivated by animus toward the plaintiff because she was a woman, but because of their failed 

relationship. Id. By Ms. Maldonado’s own admission, any mistreatment she suffered was 

motivated not by sexism, but by resentment in response to her failed engagement to Ari Golegos. 

Therefore, Ms. Maldonado has not made out a prima facie case of gender discrimination under 

Title VII. Accordingly, the Court grants Defendants’ motion for summary judgment on Count I. 

II. Tip Claims

In Counts II and III, Plaintiffs seek relief under the IMWL and the FLSA. Both the 

IMWL and the FLSA create a “tip credit.” The tip credit allows employers to pay less than the 

state and federal minimum wage to employees who receive gratuities as a customary part of their 

pay. 820 Ill. Comp. Stat. § 105/4(a)(1)(c). The IMWL and the FLSA are generally understood 

to be co-extensive in this regard. Condo v. Sysco Corp., 1 F.3d 599, 601 n.3 (7th Cir. 1993). 

There are two requirements to qualify for the tip credit: that the employer informs the employee 

11
of the minimum wage rules, and that the employee retains all tips received. This second 

requirement is at issue here. Employees may institute a tip pool without violating the second 

requirement, as long as employers or managers do not receive funds from the pool. Morgan v. 

SpeakEasy, LLC, 625 F. Supp. 2d 632, 652 (N.D. Ill. 2007). 

Plaintiffs claim that Defendants violated the tip credit provision by retaining some of 

Plaintiffs’ tips for themselves. Plaintiffs claim that Defendants took their tips in two ways: (a)

by intercepting some portion of Plaintiffs’ tips before Plaintiffs ever received them, and (b) by 

keeping Plaintiffs’ tip pool contributions for themselves rather than distributing them to the 

busboys. Plaintiffs seek back pay equal to the difference between the $4.95 per hour that they 

were paid and the state or federal minimum wage. Plaintiffs also seek restitution of all funds 

contributed into the tip pool. Count II raises a claim under the IMWL, while Count III states a 

collective action under the FLSA.2

 

Defendants bear the burden of proving that they are eligible to receive the tip credit under 

the IMWL, as the IMWL expressly defines the tip credit as an exemption to the minimum wage. 

Driver v. AppleIllinois, LLC, 890 F. Supp. 2d 1008, 1027–28 (N.D. Ill. 2012) (citing Ill. Comp. 

Stat. § 105/4(c)). When elements “can fairly be characterized as affirmative defenses or 

exemptions,” the defendant bears the burden of persuasion. Schaffer v. Weast, 546 U.S. 49, 57,

126 S. Ct. 528, 163 L.Ed.2d 387 (2005). 

However, under the FLSA, the tip credit is an exclusion from the minimum wage, rather

than an exemption; therefore, the burden lies with the plaintiff. Driver, 890 F. Supp. 2d at 1027 

(citing Sandifer v. U.S. Steel Corp., 678 F.3d 590, 595 (7th Cir. 2012)); Fast v. Applebee’s Int’l, 

Inc., 638 F.3d 872, 882 (8th Cir. 2011). Under the FLSA, Plaintiffs must initially demonstrate 

2 Counts II and III also allege that Plaintiffs were not paid for off-the-clock work, but the Court addresses 

that issue in Section III below. 

12

 
that they did not receive all tips to which they were entitled. Plaintiffs may meet this initial 

burden on their own testimony alone, without supporting documentation. Dominguez v. 

Quigley’s Irish Pub, Inc., 790 F. Supp. 2d 803, 815 (N.D. Ill. 2011). Once over this hurdle, the 

burden shifts onto Defendants to produce evidence rebutting Plaintiffs’ testimony. Id. at 812–13

(quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S. Ct. 1187, 90 L. Ed. 

1515 (1946)); see also Brown v. Family Dollar Stores of Ind., LP, 534 F.3d 593, 595 (7th Cir. 

2008). 

Here, Defendants kept a daily log of the amount of tips to which Plaintiffs were entitled,

but they have long since discarded those sheets and any record of their contents. Therefore, with 

regard to the FLSA claims, the burden shifts to Defendants once Plaintiffs testify that they did 

not receive the tips to which they were entitled. See Dominguez, 790 F. Supp. 2d at 815. 

Defendants even acknowledge that they bear the burden of persuasion under both the FLSA and 

IMWL. Doc. 134 at 8 (“Defendants have met their burden of proof as to full compliance with 

FLSA/IMWL”). 

A. Theft of Tips

Plaintiffs assert that Mr. Mack and Mr. Golegos intercepted many of their tips before 

Plaintiffs ever received the tips from customers. As a result, Plaintiffs contend that Corfu is

ineligible to take the tip credit and must instead pay its wait staff the full state minimum wage. 

Plaintiffs support these claims with their own affidavits, the affidavit of Sue James, and the 

deposition testimony of Melissa Maldonado. Plaintiffs and Ms. James all state that they 

witnessed Mr. Mack and Mr. Golegos steal their tips. Ms. Maldonado testifies that she 

personally witnessed Mr. Mack stealing tips that had been left for her on a credit card. Plaintiffs

also testify that one can infer that Mr. Mack stole their tips because on days when Mr. Mack 

13
served as the cashier at Corfu—collecting tips from many of Plaintiffs’ customers—Plaintiffs 

would receive no tips from multiple tables. 

Defendants flatly deny that Mr. Mack or Mr. Golegos ever stole any waitress’ tips. In 

support, Defendants offer nine virtually identical affidavits of Corfu waitresses who uniformly

state, “I have never been denied even the slightest portion of my tips while working at the Corfu 

Restaurant.” Mr. Golegos similarly testified that when he inquired with Corfu’s waitresses about 

Mr. Mack, none of the waitresses corroborated Plaintiffs’ claims. Defendants also point out that 

Plaintiffs could not identify any details regarding the theft of their tips. Moreover, Ms. 

Maldonado testified that she never saw Mr. Mack steal any of her tips directly from any of the 

tables. 

The Court finds that summary judgment is not appropriate because the parties dispute the 

fundamental question of fact underlying these claims. The Court is presented with directly 

conflicting testimony by Plaintiffs and Defendants as to whether Mr. Golegos or Mr. Mack ever 

stole Plaintiffs’ tips. Both parties submit corroborating statements from non-party witnesses, and

neither side supports any of its testimonial evidence with any documents. Therefore, the 

question before the Court is simply one of credibility. Summary judgment is not appropriate 

where the ultimate decision hinges on a determination of credibility. Santiago v. Lane, 894 F.2d 

218, 224 (7th Cir. 1990). Therefore, the Court denies both parties’ motions for summary 

judgment on the issue of whether Mr. Mack or Mr. Golegos stole Plaintiffs’ tips.

B. Tainting the Tip Pool

Plaintiffs also assert that Defendants violated the FLSA and IMWL by failing to 

distribute pooled tips to the busboys. Plaintiffs assert, somewhat obliquely, that the tip pool did 

not comply with the FLSA or IMWL because Defendants retained some or all of the pooled 

14
funds for their own purposes. Tip pools do not violate the FLSA unless employers and managers 

receive funds from the pool. Morgan, 625 F. Supp. 2d at 652. Without weighing in on the 

question here, the Court notes that the Sixth Circuit has held that a restaurant’s host may validly 

participate in a tip pool. Kilgore v. Outback Steakhouse of Fla., Inc., 160 F.3d 294, 302 (6th Cir. 

1998). 

Unlike the allegations that Defendants stole or otherwise short-changed Plaintiffs’ tips, 

Plaintiffs do not offer admissible evidence to support the allegation that Defendants retained any 

money from the tip pool. Conflating the two issues, Ms. Maldonado’s affidavit states, “[t]he 

Defendant failed to follow Tip Pool Requirements, by retaining portions of the tip pool without 

my consent or even knowledge. This occurred because Defendants would regularly short the 

total tips I was to receive.” Ms. Maldonado fails to recognize the distinction between whether 

she initially received the tips to which she was entitled and whether the tips that she contributed 

to the tip pool were actually distributed to the busboys. After receiving their tips, Corfu 

waitresses were required to pay 10% of their tips into a tip pool, to be divided among the 

busboys. The parties agree that Plaintiffs were not entitled to receive any funds from the pool. 

Therefore, it is nonsensical to say that Defendants violated the requirements of the tip pool by 

giving Ms. Maldonado less than she was entitled to receive. The only direct evidence Plaintiffs 

offer on this point is found in Ms. Hartsell’s affidavit. She recounts an interaction with a busboy 

who stated that he did not receive any cash tips from the tip pool. But the Court cannot consider 

this statement because it is inadmissible hearsay. 

However, Defendants’ deposition testimony is not clear on this issue. Mr. Golegos 

initially testified that he pays out the busboys on the tip amounts. But Mr. Golegos also testified

that he pays the busboys $130 every week and that this amount does not vary. The Court would 

15
expect that if the busboys were actually receiving tips from the tip pool that their pay would vary 

with the pace of business. Mrs. Golegos also implies in her deposition that the only payment

Corfu’s busboys receive are their paychecks. Defendants’ affidavits do not shed any light on

whether the busboys actually received tips from the pool. 

Therefore, the Court finds that there is a genuine issue of material fact regarding whether 

Defendants actually paid out tip pool funds to busboys or retained these funds for themselves. 

Defendants, after acknowledging that they bear the burden of persuasion with regard to their 

entitlement to the tip credit, offer inconsistent testimony on the question of whether they retained 

any tip pool funds for themselves. Plaintiffs therefore survive Defendants’ motion for summary 

judgment on the strength of specific factual inconsistencies in the Defendants’ testimony. See

Corrugated Paper Prods., Inc. v. Longview Fibre Co., 868 F.2d 908, 914 (7th Cir. 1989). 

Because the record reflects a factual dispute regarding whether Defendants actually paid all tip 

pool collections to the busboys, the Court denies both parties’ motions for summary judgment on 

this claim. 

III. Off-the-Clock Work Claim

Plaintiffs also move for summary judgment on their claim for unpaid wages. Defendants 

have not themselves moved for summary judgment on this claim. While Defendants raise this 

issue in their reply brief, the Court finds that the argument is waived for the purposes of 

Defendants’ own motion. Dexia Credit Local v. Rogan, 629 F.3d 612, 625 (7th Cir. 2010); Drew 

v. Ramos, No. 11-CV-2938, 2013 WL 5212343, at *9 (N.D. Ill. Sept. 17, 2013) (“It is wellestablished that arguments raised for the first time in a reply brief are waived.”). However, the 

Court will consider the arguments in Defendants’ reply brief as arguments in response to 

16
Plaintiffs’ motion for summary judgment. Because the issue hinges on disputed questions of 

material fact, the Court denies Plaintiffs’ motion as it relates to off-the-clock wage claim. 

Both parties rely on Dominguez, where the court denied cross-motions for summary 

judgment on the issue of whether the defendant, an Irish pub, failed to properly compensate the 

plaintiffs’ for their time. Dominguez, 790 F. Supp. 2d. at 812–18. When considering this 

question, Dominguez utilized the burden-shifting approach described above, wherein the plaintiff 

must demonstrate that he performed work for which he was not compensated, and then the 

defendant bears the burden of producing evidence to rebut this claim. Id. at 812. The court in 

Dominguez ultimately concluded that even though defendants improperly reduced the hours from 

what plaintiffs had recorded in the time log 163 times, it could not grant summary judgment in 

favor of plaintiffs because they never complained about the practice. Id. at 818. 

Plaintiffs assert that they were required to arrive before each shift began, but that they 

were not paid for their work. Ms. Maldonado testified that when she began working at Corfu she 

was ordered to arrive 15 minutes before her start time and that no one ever told her differently. 

Ms. Maldonado further states that she actually arrived 15 or 30 minutes before her shift began 

and performed work such as filling condiments, organizing tables, cutting lemons, serving 

coffee, and setting up the salad bar. Ms. Maldonado further testified that she was not paid for 

any of this pre-shift work and that when she attempted to record her actual arrival time on the 

time sheet, Mr. Golegos crossed it out and replaced it with the time her shift was scheduled to 

start. 

Defendants counter with four arguments. First, they contend that although the policy was 

in place years ago, it is no longer enforced. Second, Defendants contend that the amended 

complaint limits Plaintiffs’ claims for off-the-clock work to the claims for improper tip pool 

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procedures. Third, they assert that the wait staff normally did not do any actual work while 

waiting for their shifts to begin. Finally, Defendants argue in their reply that any work Ms. 

Maldonado performed was de minimis. 

Defendants first contend that employees were not required to arrive 15 minutes early and

that this requirement was loosely enforced. The Court finds this argument unconvincing. The 

FLSA requires an employer “to exercise its control and see that the work is not performed if it 

does not want it to be performed.” 29 C.F.R. § 785.13. An employer “cannot sit back and 

accept the benefits without compensating for them.” Id. Moreover, an employer’s “‘duty arises 

even where the employer has not requested the overtime be performed or does not desire the 

employee to work, or where the employee fails to report his overtime hours.’” Kellar v. Summit 

Seating Inc., 664 F.3d 169, 177 (7th Cir. 2011) (quoting Chao v. Gotham Registry, Inc., 514 F.3d 

280, 288 (2d Cir. 2008)). 

Defendants also argue that any off-the-clock work claims are limited to Plaintiffs’ claims 

for improper tip pool procedures, seizing on an apparent typographical error in the amended 

complaint, which states, “[t]hese claims are specifically, but limited to, claims for owed wages 

due to improper tip pool procedures.” Doc. 71 ¶ 80. The Court rejects this argument, finding 

that Defendants read the amended complaint too strictly. Because the amended complaint is 

governed by the Federal Rules of Civil Procedure, the Court reads it generously, especially with 

regard to apparent typographical errors. See Billman v. Ind. Dep’t of Corr., 56 F.3d 785, 789 

(7th Cir. 1995); Smith v. Niles Twp. High Sch. Dist. 219, No. 03 C 2984, 2006 WL 1215217, at 

*2 (N.D. Ill. May 1, 2006) (disagreeing with the defendant’s strict reading of the complaint in the 

context of summary judgment). 

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Defendants next assert that although some waitresses arrived early, many waitresses did 

not perform work in the time before their shifts began. Mrs. Golegos acknowledges that Ms. 

Maldonado sometimes worked before the start of her shifts, but she testified that 70–75% of the

time Ms. Maldonado arrived prior to the start of her shift, she would sit and drink coffee rather 

than work. In response to other specific questions regarding whether Ms. Maldonado performed 

work off the clock, Mrs. Golegos testified by describing the work habits of Corfu’s waitresses in 

general. The Court finds that Mrs. Golegos’ testimony that Ms. Maldonado usually did not 

perform work prior to the beginning of her shift, coupled with the de minimis doctrine as 

described below, raise a genuine issue of material fact with regard to Plaintiffs’ wage claims. 

Finally, the Court turns to the question of whether Plaintiffs’ off-the-clock work was de 

minimis. There are no rigid or mathematical rules outlining what amount of work qualifies as de 

minimis. Frank v. Wilson & Co., 172 F.2d 712, 716 (7th Cir. 1949). Courts have held—

especially in the context of donning and doffing uniforms or walking to a workstation—that 

approximately 10 minutes of pre-shift work may be de minimis. Kellar, 664 F.3d at 177 (citing 

Lindow v. United States, 738 F.2d 1057, 1062 (9th Cir. 1984)). Whether a given amount of time 

is de minimis is a question of law. But the question cannot be resolved without analyzing the 

facts of the case. Courts consider four factors when determining whether an activity is de 

minimis: (1) the daily amount of time spent on the work, (2) the administrative difficulty of 

recording the time, (3) the size of the claim in the aggregate, and (4) the regularity of the work. 

Farmer v. DirectSat USA, LLC, No. 08 C 3962, 2010 WL 3927640, at *11 (N.D. Ill. Oct. 4, 

2010). 

The Court finds that if Plaintiffs actually performed 15–30 minutes of work at the start of 

each shift, their claim for that time would not be de minimis. Defendants’ own cases only 

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support the notion that “unpaid activities lasting 10 minutes or less” are de minimis. Doc. 134 at 

13 (citing Lindow, 738 F.2d at 1062; Hesseltine v. Goodyear Tire & Rubber Co., 391 F. Supp. 2d 

509, 520 (E.D. Tex. 2005)). The Court refrains from expanding the de minimis doctrine to 

include a period of as much as 30 minutes. Second, the Court finds that requiring Corfu to 

accurately record its servers’ time and to compensate them for their work would not create an 

administrative burden on Defendants. Third, Plaintiffs’ claim in the aggregate could be 

substantial. As to the fourth factor, Plaintiffs assert, but Defendants dispute, that Plaintiffs 

performed this work very regularly—at the start of each shift. 

The facts before the Court do not reveal how often Plaintiffs arrived early, or how much 

Plaintiffs actually worked prior to the start of their shift. Therefore, like in Dominguez, the Court 

denies Plaintiffs’ motion for summary judgment on these claims. Plaintiffs have not testified 

with any specificity as to how often they arrived early or how much time they actually worked 

on the days they arrived before the start of their shift. Plaintiffs further do not testify that 

Defendants maintained a policy of requiring them to record their shift start and end times in the 

time log, rather Ms. Maldonado testified that when she initially logged her actual arrival time on 

the time sheet, Mr. Golegos crossed it out and replaced it with the scheduled start time of her 

shift. Like plaintiffs in Dominguez, Plaintiffs apparently did not complain about this practice. 

Dominguez, 790 F. Supp. 2d at 818. Because these material facts are in dispute, the Court cannot 

determine whether Plaintiffs’ pre-shift work was de minimis. Therefore, the Court denies 

Plaintiffs’ motion for summary judgment as to their off-the-clock work claims. 

CONCLUSION

The Court grants Defendants’ motion for summary judgment [88] with regard to Ms. 

Maldonado’s Title VII claim—Count I of the amended complaint. Any mistreatment Ms. 

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Maldonado suffered was motivated not by sexism, but by resentment in response to her failed 

engagement to Ari Golegos. The Court denies Defendants’ motion for summary judgment as it 

relates to all other counts. The Court denies Plaintiffs’ motion for summary judgment [118] in 

its entirety. The FLSA and IMWL claims are governed by disputed issues of material fact—

including whether John Golegos or Teddy Mack stole Plaintiffs’ tips or short-changed Plaintiffs 

on their tips, whether Defendants actually distributed pooled tips to busboys, and how much 

work Plaintiffs actually performed at Corfu without compensation. Because these facts are

disputed and are material to Counts II and III, summary judgment is not warranted. 

Dated: April 8, 2014 ______________________

SARA L. ELLIS

United States District Judge

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