Illinois Official Reports

Appellate Court

Glasper v. Scrub Inc., 2021 IL App (1st) 200764

Appellate Court 

Caption

DEBORAH GLASPER, Plaintiff-Appellant, v. SCRUB INC., MARK 

RATHKE, and THERESA KAMINSKA, Defendants-Appellees.

District & No. First District, Sixth Division 

No. 1-20-0764

Filed July 30, 2021

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 18-CH-15344; the 

Hon. Raymond W. Mitchell, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Jeffrey Grant Brown, of Jeffrey Grant Brown, P.C., and Glen J. Dunn 

Jr., of Glen J. Dunn & Associates, Ltd., both of Chicago, for appellant.

Francisco E. Connell, Ryan A. Haas, and Michael D. Leifman, of 

Chuhak & Tecson, P.C., of Chicago, for appellees.

Panel JUSTICE ODEN JOHNSON delivered the judgment of the court, with 

opinion.

Presiding Justice Mikva and Justice Connors concurred in the 

judgment and opinion. 
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OPINION

¶ 1 Plaintiff, Deborah Glasper (Glasper), filed suit against defendant, Scrub Inc. (Scrub), Mark 

Rathke (Rathke), and Theresa Kaminska (Kaminska) (collectively, defendants) for injunctive 

and other relief. Plaintiff alleged that Scrub violated the Wage Payment and Collection Act 

(Wage Payment Act) (820 ILCS 115/1 et seq. (West 2018)) by not paying her for work done 

prior to her shift, during her lunch break, and after her shift and by not paying the overtime 

rate when it applied. Scrub filed a motion pursuant to section 2-619 of the Code of Civil 

Procedure (Code) (735 ILCS 5/2-619 (West 2018)), arguing that plaintiff was preempted from 

raising this claim based on section 301 of the federal Labor Management Relations Act 

(LMRA) (29 U.S.C. § 185(a) (2018)). On appeal, plaintiff contends that the circuit court erred 

in granting Scrub’s motion to dismiss her amended complaint, pursuant to section 2-619. For 

the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 The record reveals that plaintiff filed suit against defendants in the circuit court of Cook 

County on December 11, 2018. The following facts are taken from the parties’ pleadings. 

¶ 4 Scrub contracted with the City of Chicago Department of Aviation to provide janitorial 

services at Chicago O’Hare International Airport (O’Hare) on January 1, 2005.1 Rathke was 

the general manager and part owner of Scrub. Kaminska has at times been an owner, the vice 

president of operations, the president, and a manager of Scrub. Plaintiff worked for Scrub as a 

janitor at O’Hare from approximately 2005 to December 31, 2012. Plaintiff was an hourly 

nonexempt employee and a member of the Services Employees International Union (SEIU).

SEIU entered into a collective bargaining agreement (CBA) with Scrub. 

¶ 5 On December 11, 2018, plaintiff filed a complaint for injunctive and other relief against 

Scrub, Rathke, and Kaminska. The complaint alleged that all three defendants violated section

14(a) of the Wage Payment Act (820 ILCS 115/14(a) (West 2018)).

¶ 6 The complaint alleged that plaintiff was deprived of her wages and overtime pay due to 

Scrub’s practice of rounding the punched time clock entries (punch-time) to her detriment and 

without her consent. Plaintiff alleged that she and Scrub had an agreement, separate from the 

CBA, that Scrub breached by failing to pay wages and or final compensation in violation of 

the Wage Payment Act. Plaintiff alleged that Scrub required her to arrive early in order to 

gather work supplies and meet with supervisors prior to the start time of her shift. Accordingly, 

plaintiff would regularly arrive early and begin working prior to punching in at the scheduled 

work time. Plaintiff also regularly worked through some or all of her 30-minute unpaid lunch 

breaks. Plaintiff alleged that Scrub rounded punch-times in order to process payroll. During 

the relevant time period, plaintiff alleged that she was not paid the proper overtime pay and 

that Scrub failed to properly record the exact times that plaintiff took breaks. Plaintiff further 

alleged that Scrub penalized janitors for clocking in 5 minutes late by deducting 15 minutes 

from their overall time. Additionally, Scrub allegedly implemented a policy that required 

janitors to get overtime preapproved in order to be compensated, resulting in plaintiff routinely 

working overtime hours without compensation, despite defendant’s knowledge thereof. 

1

The contract was renewed upon its expiration in December 2007.
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¶ 7 As a result of Scrub’s actions, plaintiff sought compensatory damages, including all regular 

and overtime work not previously paid; statutory damages, including prejudgment interest on 

all regular and overtime compensation due, accruing from the date such amounts were 

incurred; injunctive relief, enjoining defendants from failing to pay plaintiff for work 

performed in the future; and attorney fees and other relief.

¶ 8 On March 25, 2019, Scrub filed a combined motion to dismiss plaintiff’s complaint 

pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2018)), contending that 

this complaint was plaintiff’s third attempt to bring the same claims against Scrub. Plaintiff 

was a member of two class action cases involving defendants that were filed in federal court: 

Solsol v. Scrub, Inc., No. 13 CV 07652, and Abdi v. Scrub, Inc., No. 17 CV 05136.2 Thus, 

defendants argued that plaintiff was barred from filing a third case in the state court because 

the supreme court has held that section 13-217 of the Code (735 ILCS 5/13-217 (West 2018)) 

provides a plaintiff with only a single refiling of a claim after dismissal, citing Timberlake v. 

Illini Hospital, 175 Ill. 2d 159 (1997), as support. As such, Scrub concluded that plaintiff’s 

complaint should be dismissed with prejudice, pursuant to section 2-619(a)(9) of the Code (735 

ILCS 5/2-619(a)(9) (West 2018)).

¶ 9 Alternatively, Scrub argued that plaintiff’s complaint should be dismissed because her 

Wage Payment Act claims were deficient and sought to repackage claims for unpaid wages 

and overtime to circumvent the statute of limitations provided under the Fair Labor Standards 

Act and the Illinois Minimum Wage Act. Scrub contended that the Wage Payment Act does 

not provide a substantive right to overtime pay, citing Brand v. Comcast Corp., No. 12 CV 

1122, 2013 WL 1499008 (N.D. Ill. Apr. 11, 2013), as support. Scrub thereby concluded that 

plaintiff’s claims were insufficient under the Wage Payment Act and should be dismissed 

pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2018)).

¶ 10 On April 26, 2019, plaintiff filed a response to defendants’ combined motion to dismiss. 

The response argued that plaintiff was not barred from filing this claim due to the single refiling 

rule under section 13-217 because she was not a class member in Solsol, nor was she a class 

member in Abdi. Further, plaintiff contends that even if she were a party, section 13-217 does 

not apply because those suits that were filed in federal court were not reversed or dismissed 

and the case does not fall into any of the six categories of when it would apply. Plaintiff argued 

that state law does not apply to the filings in federal court. 

¶ 11 Next, plaintiff argued that she properly pled a claim under the Wage Payment Act, which 

was based on an agreement or contract. Accordingly, plaintiff maintained that her claim was 

filed within the 10-year statute of limitations period. 

¶ 12 On September 16, 2019, the circuit court entered a written order granting defendants’ 

combined motion to dismiss without prejudice. The court found that the Solsol case did not 

2

Both actions were filed in the United States Northern District of Illinois, Eastern Division. The 

class action complaint, Solsol v. Scrub, Inc., was filed on October 24, 2013, No. 13 CV 07652. On 

November 27, 2014, plaintiff joined the case. On May 23, 2017, the district court decertified the class 

and on July 7, 2017, the court entered an order dismissing all of the opt-in plaintiffs, which included 

the plaintiff herein. 

On July 11, 2017, plaintiff was party to a second class action suit, Abdi v. Scrub, Inc., No. 17 CV 

05136. On January 8, 2018, an amended complaint was filed without naming plaintiff, thereby 

dismissing plaintiff from the suit.
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trigger the section 13-217 (id. § 13-217) single refiling requirement because the complaint did 

not meet the six instances of reversal or dismissals outlined therein. The court found that 

because Solsol did not trigger the section 13-217 single refiling requirement, it need not 

analyze if plaintiff was a party to Abdi. However, even if plaintiff was excluded because of the 

triggering in section 13-217, plaintiff was still allowed a single refiling within one year or 

within the statute of limitations, whichever was longer. Plaintiff filed the current case on 

December 11, 2018, within one year of the filing of the amended complaint in Abdi. The court 

found that Scrub agreed to comply with paying plaintiff overtime and failed to do so. It further 

found that plaintiff’s allegations pertaining to Scrub’s agreement to follow the applicable law, 

with nothing more, were insufficient to establish an agreement under the Wage Payment Act. 

¶ 13 On October 15, 2019, plaintiff filed her amended complaint for injunctive relief against 

defendants, raising a common law breach of contract claim and a claim under the Wage 

Payment Act for lost wages during her employment as a janitor for Scrub. Counts I through III 

alleged violations under section 14(a) of the Wage Payment Act against Scrub, Rathke, and 

Kaminska, and count IV alleged a common law breach of contract claim against Scrub. 

¶ 14 Plaintiff alleged in counts I through III that she had an agreement with Scrub within the 

meaning of the Wage Payment Act to be compensated for all hours worked at the rates to which 

the parties agreed, including one and a half times plaintiff’s regular rate of pay for all time 

worked beyond 40 hours per week. Plaintiff alleged that this was pursuant to the agreement 

contained in the 2005 contract between Chicago and Scrub. Plaintiff further alleged that she 

routinely worked for Scrub on her unpaid lunch periods and before and after her scheduled 

shifts. She stated that the work performed before and after the work schedule was required and 

permitted by the employee handbook, was often observed and assisted by supervisors, and was 

performed without pay. Defendants’ failure to pay plaintiff for work performed before her 

shifts, after her shifts, and during lunch breaks violated the Wage Payment Act, plaintiff 

argued. 

¶ 15 Plaintiff sought a declaration and finding that Scrub, Rathke, and Kaminska jointly and 

severally committed the following acts: deliberate violation of the Wage Payment Act by 

failing to pay agreed upon wages and final compensation to plaintiff and deliberate violation 

of overtime provisions in the Wage Payment Act by not paying for agreed overtime wages. 

Plaintiff sought compensatory damages, including overtime and regular pay owed, and 

statutory damages, including prejudgment interest, on all regular and overtime compensation 

due accruing from the date such amounts were due. She also sought an injunction to prevent 

Scrub from failing to pay plaintiff for all future work and an award of all costs and reasonable 

attorney fees incurred.

¶ 16 Count IV alleged that Scrub failed to compensate plaintiff for all time worked beyond 40 

hours per week at the rate of one and a half times plaintiff’s regular hourly rate, pursuant to 

their contractual agreement. Plaintiff sought a declaration and finding that Scrub deliberately 

failed to adhere to the compensation terms of the agreement between the parties. Additionally, 

plaintiff requested damages similar to those sought for counts I through III.

¶ 17 On November 13, 2019, defendants filed a section 2-619 (id. § 2-619) motion to dismiss 

plaintiff’s amended complaint, arguing that plaintiff’s claims attempted to circumvent the 

previous findings of the circuit court by alleging there was a breach of the CBA that was made 

between Scrub and the SEIU with regard to wages, scheduling, hours worked, and overtime. 

Defendants argued that because plaintiff’s claims required an interpretation of the CBA, the 
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claims must be arbitrated in accordance with that agreement; thus, plaintiff’s Wage Payment 

Act claim was preempted by section 301 of the LMRA (29 U.S.C. § 185(a)), citing Kostecki 

v. Dominick’s Finer Foods, Inc., of Illinois, 361 Ill. App. 3d 362 (2005), as support. Scrub 

further contended that plaintiff was required to exhaust any grievance through arbitration, 

pursuant to article XVII of the CBA, prior to raising a claim in any court citing Gelb v. Air 

Con Refrigeration & Heating, Inc., 356 Ill. App. 3d 686 (2005), as support. 

¶ 18 Scrub argued that because the CBA provided applicable wage rates, defined the workweek, 

allowed premium pay, and described the conditions under which overtime was to be paid, it 

must be interpreted and applied, thereby triggering the LMRA. Specifically, Scrub argued that 

the court would be required to do the following: interpret article IV of the CBA to determine 

which wage rate applied to plaintiff for each period or determine if plaintiff received a pay rate 

in excess of the specified rates under a prior CBA per article IV, section l(c); determine whether 

plaintiff performed any premium work per article V, section 2, and would need to determine 

whether work was performed on a Sunday and whether it was overtime; decide whether 

plaintiff was to receive time and one-half her regular rate or time and one-half the overtime 

rate specified for Sunday work in article IV, section 9, of the CBA; and interpret and apply the 

CBA’s definition of overtime to decide whether plaintiff worked “in excess of the regular 

weekly schedule of the employee” under article V, sections 4 and 5, to decide the hours for 

which she would be eligible for an overtime rate. These interpretations and determinations 

were required to be applied in order to resolve plaintiff’s Wage Payment Act and breach of 

contract claims.

¶ 19 Defendants also argued that plaintiff had not exhausted her contractual remedies before 

filing suit. Defendants argued that article XVIII of the CBA provided the grievance procedures 

“pertaining to any difference or dispute which may arise under [the] Agreement.” Defendants 

argued that article XX provided that disputes over employee classifications and earnings to 

which they were entitled were subject to the grievance and arbitration provisions; the grievance 

procedure provided three steps to resolve any dispute under the CBA. Defendants argued that 

when a dispute was not resolved in steps I and II, then a demand for arbitration could be 

submitted in step III; any decision by the arbitrator in step III was final and binding upon the 

employer, the employee, and the union. Defendants argued that plaintiff did not submit a 

demand for arbitration and did not follow the three-step procedure for resolving grievances 

under article XVIII of the CBA and, therefore, her claims were not properly before the circuit 

court. 

¶ 20 On December 17, 2019, plaintiff filed a response to defendants’ motion to dismiss her 

amended complaint, arguing that defendants’ motion ignored the terms of the Chicago 

contract, which was executed a year before the CBA was formed. The Chicago contract was 

evidence of Scrub’s agreement to pay plaintiff. The Chicago contract defined the hourly rate, 

the obligation to pay, the two definitions of the overtime that plaintiff sought with her 

complaint, and the definition of work. Plaintiff therefore contended that reference to the CBA 

was not necessary. 

¶ 21 Plaintiff further argued that federal preemption pursuant to section 301 of the LMRA did 

not apply when a state law provided for an action independent of the CBA and could be 

resolved without interpreting the CBA, citing Lingle v. Norge Division of Magic Chef, Inc.,

486 U.S. 399 (1988), as support. Plaintiff argued that no interpretation of the CBA was needed 

because the Chicago contract provided the definitions of workweeks (40 hours per week), 
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overtime (each immediate subsequent hour that was worked beyond an 8-hour shift even if a 

holiday), and shift time (8 hours within a 24-hour day that is not a holiday). Plaintiff argued 

that this was consistent with the definitions that the CBA provided, which were workweek (40 

hours per week) and overtime (time that exceeded 40 hours to be paid at time and a half). Based 

on those comparisons, plaintiff argued that the Chicago contract and the CBA were consistent 

with each other. Plaintiff argued that the overtime provisions were set forth in both the Fair 

Labor Standards Act and the Illinois Minimum Wage Act. Plaintiff insisted that there was no 

need to look at the CBA in order to enforce the terms of the agreement. 

¶ 22 Plaintiff further argued that her breach of contract claim was independent of the CBA and 

was allowed to pursue it under the Wage Payment Act claim. All references made to the CBA 

in her complaint was evidence and not to assert a cause of action. Plaintiff argued that filing a 

grievance was not required because her claim did not come from the CBA but rather from 

Chicago contract, and therefore, she could not be required to follow the procedures in the CBA. 

¶ 23 On May 13, 2020, the circuit court entered a written order granting defendants’ motion to 

dismiss plaintiff’s amended complaint. The court noted that plaintiff was not a party to the 

Chicago contract and that it shed no light on any agreement between Scrub and plaintiff. The 

court found that the CBA was not in conflict with any state law, if it were, an independent state 

action would be available to the plaintiff. The court stated that plaintiff may not pick and 

choose certain terms of the CBA that she wished to pursue in order to suit her argument that 

only a “mere reference” to the CBA is required. Instead, the entirety of the CBA would be 

considered.

¶ 24 Regarding the argument that plaintiff’s case was preempted, the circuit court found that 

Gelb and Kostecki were controlling. The court found that section 301 of the LMRA preempted 

state claims where resolving the claims required referencing and interpreting the overtime pay 

provisions of a CBA, citing Gelb, 356 Ill. App. 3d 686, and Kostecki, 361 Ill. App. 3d 362, as 

support. Here, the court found that plaintiff sought unpaid regular and overtime wages, which 

required a determination of the amount of unpaid wages that was owed. That required more 

than a mere reference to the CBA, but rather an interpretation and application of the wage, 

overtime, and pay provisions. The circuit court concluded that plaintiff’s rights existed under 

the CBA and were therefore preempted under section 301 of the LMRA. Defendants’ motion 

to dismiss was granted, and plaintiff timely appealed the decision of the circuit court.

¶ 25 II. ANALYSIS

¶ 26 On appeal, plaintiff contends that the circuit court erred in granting Scrub’s motion to 

dismiss her amended complaint, pursuant to section 2-619 (735 ILCS 5/2-619 (West 2018)).

¶ 27 A. Violation of Rule 341(h)(6)

¶ 28 As a preliminary matter, defendants contend that plaintiff’s legal argument and 

unsupported statements should be stricken from the statement of facts pursuant to Illinois 

Supreme Court Rule 341(h)(6) (eff. Oct. 1, 2020). Defendants contend that plaintiff presented 

an improper argument in her statement of facts when she described the circuit court’s decision 

as “erroneous” in her opening brief and that this should be stricken or disregarded. See Board 

of Managers of Eleventh Street Loftominium Ass’n v. Wabash Loftominium, LLC, 376 Ill. App. 

3d 185, 187-88 (2007) (holding that the court must strike arguments made in statement of facts 

of appellate brief). Next, defendants contend that plaintiff included statements that were 
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unsupported by any citation to the record on pages five to seven of her brief in violation of 

Rule 341(h)(6), citing John Crane Inc. v. Admiral Insurance Co., 391 Ill. App. 3d 693 (2009), 

as support. 

¶ 29 In response, plaintiff contends that her usage of “erroneous” was intended to clarify that 

the circuit court’s holding about what was a fact was incorrect. It was not “argumentative and 

confusing” as the brief in Board of Managers of Eleventh St. Loftominium Ass’n was found to 

be, citing Board of Managers of Eleventh St. Loftominium Ass’n, 376 Ill. App. 3d at 187, as 

support. Further, she indicates that the pages in question without a citation, did not need a 

citation, because it was a long quote, which in the end, was cited. 

¶ 30 Although the usage of the term “erroneous” is argumentative, we agree with plaintiff that, 

as a whole, the statement of facts do not rise to the level of “argumentative and confusing.” Id.

Further, the statement of facts is able to “convey a complete picture of the proceedings.” Id.

Lastly, looking at the pages in question that do not contain citations, we also agree with plaintiff 

that a citation was not necessary until the end of the quoted text, which was done in accordance 

with Rule 341(h)(6). Thus, plaintiff’s brief does not violate Rule 341(h)(6), and we decline to 

strike the portions referenced by defendants.

¶ 31 B. Section 2-619 Motion to Dismiss

¶ 32 On appeal, plaintiff contends that the circuit court erred in granting defendants’ section 2-

619 (735 ILCS 5/2-619 (West 2018)) motion to dismiss. A motion pursuant to section 2-619 

“provides for the involuntary dismissal of a cause of action based on certain defects or 

defenses.” Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 383 (2004). Grounds for a 

dismissal under section 2-619 are available if the “claim asserted is barred by other affirmative 

matter which avoids the legal effect of or defeats the claim.” Id. An “[a]ffirmative matter must 

be supported by affidavit, unless apparent on the face of the pleading attacked [citation], and, 

in ruling on the motion, the trial court must interpret all pleadings and supporting documents 

in the light most favorable to the nonmoving party.” Id. We review the circuit court’s grant of 

a motion to dismiss de novo. Id.

¶ 33 1. The Applicable Agreement

¶ 34 Plaintiff contends that the circuit court erred in determining that the CBA forms the basis 

of the agreement between she and Scrub because there was an implied agreement with 

defendant, independent of the CBA, and that agreement is enforceable by the Wage Payment 

Act (820 ILCS 115/1 et seq. (West 2018)). Plaintiff alleges an implied agreement where Scrub 

agreed to pay her based on a demonstrable formula for work done, citing Landers-Scelfo v. 

Corporate Office Systems, Inc., 356 Ill. App. 3d 1060 (2005), and Zabinsky v. Gelber Group, 

Inc., 347 Ill. App. 3d 243 (2004), as support. Plaintiff attempted to further demonstrate the 

terms of the agreement by referencing the Chicago contract, thereby negating any need to 

interpret the CBA. Additionally, plaintiff contends that the truth of the implicit agreement 

should be deemed admitted because defendant did not answer the amended complaint. Plaintiff 

contends that when filing a motion to dismiss, defendants admitted the sufficiency of plaintiff’s 

claims citing Abruzzo v. City of Park Ridge, 231 Ill. 2d 324 (2008), as support. 

¶ 35 Defendants, however, contend that the CBA is controlling and must be interpreted in order 

to address plaintiff’s claims. They allege that the Chicago contract provided for minimum pay 

rates for all labor, including janitorial, but an interpretation of the CBA was still needed to 
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establish exact amounts for overtime pay. Defendants also argue that plaintiff’s reliance on 

Landers-Scelfo was misplaced because in that case the plaintiff was not in a union and had no 

controlling CBA or written agreement, and thus, reliance on the Wage Payment Act was 

appropriate. See Landers-Scelfo, 356 Ill. App. 3d at 1067-68. In the present case, plaintiff is a 

member of the SEIU, and the terms of her employment with Scrub (wages hours and overtime) 

were expressly governed by the CBA. 

¶ 36 We have previously held that the mere existence of a CBA does not require all claims to 

be subject to the grievance and arbitration procedures of it. Gelb, 356 Ill. App. 3d at 695. 

Instead, the court must consider if the claim is one governed by contract. Id. However, where 

a CBA “adequately addresses an aspect of employee compensation or other working 

conditions, a state statute will defer to the collective bargaining agreement’s grievance 

procedures.” Id. Further, when the “employee’s claim arises entirely out of a collective 

bargaining agreement, the employee lacks standing to pursue judicial relief without first 

exhausting any remedies provided for in the agreement.” Id.

¶ 37 Here, the parties do not dispute that defendants entered into the CBA with SEIU on April 

6, 2009. Article 1 of the CBA provides that the employer recognizes the union as the sole and 

exclusive representative of all janitorial employees. Thus, there is also no dispute that, pursuant 

to that same CBA, plaintiff is a member of SEIU and subject to the terms contained in said 

CBA. 

¶ 38 Plaintiff claims defendants failed to pay her for work done prior to her shift, work done 

after her shift, and work done during her lunch break and failed to pay the overtime rate when 

it applied. The CBA in the instant case specifically defines the number of hours in a work 

week, amount of wages, and provides a formula to calculate overtime pay. The CBA further 

spells out in great detail grievance procedures and arbitration that must be followed by both 

the union members and the employer. Thus, there is no aspect of plaintiff’s claim that is not 

addressed by, does not arise from, or is independent of the CBA. 

¶ 39 Next, plaintiff contends that she had an implied agreement with defendant, which would 

also allow her to raise a claim under the Wage Payment Act. It is true that this court has held 

that an implied contract can exist in the absence of an express agreement. Landers-Scelfo, 356 

Ill. App. 3d at 1067. However, here, plaintiff has the benefit of the express agreement in the 

form of a CBA that has been negotiated on her behalf by the SEIU. Thus, no implied agreement 

can exist between plaintiff and Scrub. 

¶ 40 Further, article 1 of the CBA specifically provides that the employer and employees shall 

not bargain independently of the union with respect to wages, hours of employment, or 

working conditions. This language specifically prohibits employees from creating contracts or 

agreements independent of SEIU’s CBA. Hence, it follows that this prohibition would likewise 

apply to implied or inferred agreements as well. If this court allowed every employee with a 

CBA to also have an implied contract, employers would be inundated with numerous 

independent agreements potentially all with varying terms. And the unions’ negotiating powers 

would likely be severely diminished. 

¶ 41 Plaintiff’s contention that the implied agreement became controlling upon the filing of the 

section 2-619 motion is false. A section 2-619 motion to dismiss allows for a party’s complaint 

to be barred. Borowiec, 209 Ill. 2d at 383. When movants file a section 2-619 motion, they 

admit the sufficiency of the complaint, but provide an affirmative defense that would defeat 

the claim. Reynolds v. Jimmy John’s Enterprise, LLC, 2013 IL App (4th) 120139, ¶ 31. Here, 
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defendant has raised the defense of preemption, which we will address further shortly, asserting 

that this court is barred from hearing plaintiff’s claim. While admitting the sufficiency of the 

claims, defendant argues that the circuit court is not the correct forum for hearing those claims. 

¶ 42 Some of the most important functions of a CBA are to establish a negotiated and stable pay 

structure for employees and to provide mechanisms for adequate dispute resolution. As a 

member of the SEIU, plaintiff had no need to infer an independent agreement as she already 

had the benefit of a negotiated agreement in the form of the CBA. The CBA provided 

contractual remedies to address her specific disputes regarding unpaid wages and overtime 

pay, which should have been exhausted before filing the instant claim. 

¶ 43 Plaintiff has not challenged the specific terms or provisions of the CBA; therefore, we must 

presume that the articles in the CBA governing compensation, working conditions, and 

grievance procedures were adequate. Thus, in keeping with the court in Gelb, the Wage 

Payment Act must give deference to the CBA. Gelb, 356 Ill. App. 3d at 695. Therefore, we 

find that the circuit court did not err in finding the CBA to be the controlling agreement.

¶ 44 2. Section 301

¶ 45 Plaintiff contends that the circuit court erred in finding that her claim was preempted by 

section 301 of the LMRA (29 U.S.C. § 185(a)). Under section 301, federal district courts are 

vested with jurisdiction over complaints alleging a breach of contract between an employer 

and union. Bartley v. University Asphalt Co., 111 Ill. 2d 318, 321-22 (1986). Having decided 

that the CBA is controlling, we will now apply section 301 to plaintiff’s claims.

¶ 46 Plaintiff contends that her claims are not preempted because her case is analogous to 

Whitmore v. Kraft Foods Global, Inc., 798 F. Supp. 2d 917 (N.D. Ill. 2011), which found no 

preemption when the plaintiff abandoned a more generous CBA compensation right in order 

to enforce an independent agreement that was consistent or equal with the minimum 

compensation rights of the worker under the state law framework. Plaintiff again argues that 

no interpretation is needed in regard to any portion of the CBA to realize that Scrub promised 

to pay plaintiff for all time worked, including overtime, citing Allis-Chalmers Corp. v. Lueck, 

471 U.S. 202 (1985), as support. Further, plaintiff insists that a defendant filing a motion to 

dismiss admits the legal sufficiency of the complaint and deem all facts stated therein as true. 

¶ 47 In response, defendants contend that the CBA must be interpreted and applied in order to 

resolve plaintiff’s claim, and this is preempted by section 301 of the LMRA citing Gelb, 356 

Ill. App. 3d 686, as support. Specifically, defendants contend that plaintiff’s allegations 

regarding scheduling, hours, wages, and overtime require interpretation of the CBA’s article 

IV; thus, the claims are preempted by section 301 of the LMRA. Defendants also contend that 

plaintiff’s reliance on Whitmore is misplaced because that case was about a provision in a CBA 

that was alleged to be unenforceable under state law, which is not what plaintiff is alleging in 

this case. See Whitmore, 798 F. Supp. 2d at 922. Further, defendants contend that this court is 

not bound by the federal case law from which Whitmore arose, citing Kinney v. St. Paul 

Mercury Insurance Co., 120 Ill. App. 3d 294 (1983), as support. And finally, defendants point 

out that the CBA requires plaintiff to exhaust the grievance and arbitration provision provided 

in article XVIII prior to bringing its claim before the court.

¶ 48 Defendants are correct. Section 301 of the LMRA grants federal district courts exclusive 

jurisdiction over disputes involving CBAs. See Whitmore, 798 F. Supp. 2d at 920-21. Contrary 

to plaintiff’s contention, the terms of her scheduling, hours, wages, and overtime are not 
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obvious and able to be ascertained without interpreting the CBA. The fact finder would have 

to refer to the CBA in order to determine the amount of wages due to plaintiff, whether 

defendants complied with the CBA in determining overtime pay, whether plaintiff worked the 

relevant time period, and whether overtime was calculated using the formula prescribed by the 

CBA. See Gelb, 356 Ill. App. 3d at 693-94. 

¶ 49 Further, not only is plaintiff’s reliance on federal appellate court cases not binding on this 

court (Kinney, 120 Ill. App. 3d at 300), but plaintiff has not alleged that the terms of the CBA 

are unenforceable as was the case in Whitmore (see Whitmore, 798 F. Supp. 2d at 922). Thus, 

we are not persuaded that we should ignore the terms of the CBA, and as we determined earlier, 

no other agreement is binding between Scrub and plaintiff. 

¶ 50 Although the Wage Payment Act does provide standard requirements for employers that 

ascertain the work week, wages, and overtime, those requirements are generally provided in 

the absence of a CBA. Kostecki, 361 Ill. App. 3d at 370. In Kostecki, the plaintiff belonged to 

a union that negotiated the terms of her employment with her employer. Plaintiff similarly filed 

a complaint against her employer, alleging it violated multiple state wage statutes by not paying 

for work done and for not timely paying employees. Id. at 365. Her employer filed a section 

2-619 motion to dismiss, which was granted by the circuit court. Id. On appeal, this court held 

that the CBA governed the exact claims plaintiff attempted to raise in state court. Since no 

independent claim arose, she had to follow the grievance and arbitration procedures in the 

CBA. Id. at 371. We found that the fact finder would have had to interpret the terms of the 

agreement in order to resolve plaintiff’s claims; “an activity best suited for the arbitrator.” Id.

Similarly, in this case, there exists no independent claim raised by plaintiff that is not covered 

by the CBA. The CBA covers the work week, overtime, and wages; therefore, the terms of the 

CBA would have to be interpreted in order to resolve plaintiff’s claims. 

¶ 51 Federal labor policy provides that when resolving a state law claim that is dependent on 

the analysis of the terms contained in the agreement, the claim must either be arbitrated as 

required by the CBA or dismissed as preempted under section 301 of the LMRA. Id. at 368. 

As alluded to earlier, the grievance and arbitration procedure provided in the CBA under article 

XVIII have not been exhausted by plaintiff. We have held that when a CBA establishes a 

grievance and arbitration procedure for disputes arising out of the CBA and the court has 

determined that the claim on its face is governed by the contract, an employee must attempt to 

exhaust their contractual remedies before seeking judicial relief. Gelb, 356 Ill. App. 3d at 695. 

“The exhaustion of administrative remedies is a procedural prerequisite to maintaining a 

section 301 action.” Id. Here, article XVIII of the CBA had a three-step procedure for 

employees to follow if they have a grievance. Plaintiff did not use this administrative remedy 

provided in the CBA, which was a prerequisite to filing suit per section 301 of the LMRA. The 

claims and respective remedial procedures are clearly addressed by the CBA, thereby negating 

plaintiff’s alleged independent action. As such, we conclude that the trial court did not err in 

finding plaintiff’s claims to be preempted. 

¶ 52 Lastly, plaintiff’s contention that her entire complaint established facts that required no 

interpretation of the CBA because defendants filed a section 2-619 motion to dismiss in lieu 

of an answer is patently false. As we have held above, the nature of a section 2-619 motion 

admits the sufficiency of the complaint but provides an affirmative defense that would defeat 

the claim. Reynolds, 2013 IL App (4th) 120139, ¶ 31. Plaintiff seems to confuse sufficiency 

with truth or fact; however, they are not synonymous. Essentially, a section 2-619 motion says 
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that plaintiff’s complaint may be sufficient and alleges enough on which to base a claim, but 

that the claim is preempted and cannot move forward. Accordingly, we find that the circuit 

court did not err in granting defendants’ motion to dismiss the plaintiff’s amended complaint. 

¶ 53 III. CONCLUSION

¶ 54 Based on the foregoing, the judgment of the circuit court is affirmed.

¶ 55 Affirmed.