working overtime, and was told by a supervisor that if she worked overtime, “nol to let her know
about it.” Williams was lold by three of her supervisors that overtime was to be discouraged
among staff for budgetary reasons. Williams discouraged overtime to her staff during gencral
staff meetings. Plaintiff worked overtime in 1997, 1998, and 1999, without being compensated
for it. Plaintiff did not record the overtime on her time card. According to plaintiff she did not
record it because the supervisor had told her not to let her know about any overtime. The court
concludes that a reasonable jury could find that defendants’ conduct was willful, based on the
evidence that a supervisor wamed plaintiff not to inform her if she worked overtime.
Accordingly, the three-year statute of limitations applies, and plaintiff's FLSA claim is timely as
to at least some of her overtime. Defendants’ motion for summary judgment is demed as to
plaintiff's FLSA claim.

KR. Civil Conspiracy

Finally, defendants contend that the Illinois Human Rights Act preempts plaintiff's civil
conspiracy claim against Williams and Blanning. As noled above, the THRA removes from
federal and state court jurisdiction all civil rights violations covered by the Act, 775 ILCS 5/8-

111(C); Geise v. Phoenix Co. of Chicago, 639 N.E.2d 1273, 1276 (ll. 1994), Elaas v. Village of

Hinsdale, No. 01 C 1278, 2001 WL 1609367, at *2 (N.D. Ill, Dec. 17, 2001), Under the JHRA,
“civil rights violations” include discrimination in the terms, privileges, or conditions or
employment, based on race and age. 775 LLCS 5/1-103(Q) & 5/2-102(A), Although torts
independent of any civil-rights claims remain subject to judicial adjudication, if a claim is

“inextricably linked” to a civil rights violation, it is preempted by the TIHRA, and must be

presented to the Illinois Human Rights Commission rather than to a court. Geise, 639 N.b.2d at



schedules, and determined who could do so on an individual basis.

Plaintiff claims that in the fall of 1999, Williams threw a log sheet at her, which landed
on plaintiff's desk and did not hit her.

Also in the fall of 1999, Williams instructed plaintiff to stop translating Spanish for a
patient. Williams gave this instruction because she was concerned about CMH’s potential
liability if plaintiff translated a medical term incorrectly. Plaintiff understood that it was
hospital policy for only hospital interpreters to translate for patients.

In October 1999, plaintiff requested an clcctric stapler from Williams. According to
plaintiff, Williams raised her voice, and grabbed plaintiff's sleeve and shook it, saying: “Look
around and get real. This would never work here.” Plaintiff was neither frightened nor injured,

CMH employees, including plaintiff, were required to fill out handwritten time cards, and
submil them to their supervisors. When Paustian was a supervisor at CMH, he had a practice of
allowing employees to make up a late arrival of five to ten minutes without notifying him or
recording the Jate arrival on the time card.

On January 4 and 6, 2000, Blanning noticed (hat plaintiff arrived at work after 7:30 a.m.,
and informed Williams of plaintiffs tardiness. On January 6, Williams counseled plaintiff on
her tardiness and instructed her to accurately reflect her correct armval time on her time card.
Plaintiff told Williams “not to worry” because she “always would reflect [her] time on the time
card.” Plaintiff did not ask Williams if it would be acceptable to record an arrival time of 7:30,
and then make up the lost time during the day. Afler this conversation, Williams asked Blanning

to watch when plaintiff arrived at work cach day, Blanning never had any conversations with

Williams about any other employces’ tardiness.



with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
“The workplace that is actionable is the one that is ‘hellish.’ Perry v. Harris Chemin, Inc., 126
F.3d 1010, 1013 (7" Cir. 1997) (citing Baskerville y, Culligan Int’! Co., 50 F.3d 428, 430 (7"
Cir, 1995)), Moreover, plaintiff must show that the complained-of conduct has a racial or

national-origin-related character or purpose. See Hardin v. S.C. Johnson & Son, Inc., 167 F.3d

340, 345-46 (7" Cir, 1999),

In this case, plaintiff has {ailed to show that she suffered severe or pervasive harassment.
Plaintiff contends that the following incidents amount to severe or pervasive harassment:*
. Being required to cross-train;

. Williams’ statement to plaintiff that she should not feel singled out, in response lo
plaintiff’s inquiry as to why she was being cross-trained first,

* Williams’ act of shaking plaintiff by the sleeve and telling her to “get real,” in response to
plaintiff’s request for an electric stapler;

. Williams’ statement to plaintiff that ‘just because you have a Spanish last name docs not
qualify you to translate” and instruction to plaintiff that she stop translating Spanish for a
patient;

. Williams’ act of throwing a log sheet at plaintiff;

’ Blanning’s watching when plaintiff arrived for work; and

. Williams’ denial of plaintiff's flex-time request.

The cross-training requirement and monitoring by a supervisor (even a supervisor Who was not

4 Although it is unclear, plaintiff may also contend that some of these incidents, such as
the cross-training requirement, individually constitute discrimination. Llowever, none of these
incidents amounts to an materially adverse employment action, and thus any discrimination claim
based on an individual incident would fail. See Crady v. Liberty Nat’] Bank & Trust Co., 993
£.2d 132, 136 (7" Cir. 1993) (a materially adverse cmployment action requires a significant
change in employment status, such as being fired, being reassigned with significantly different
responsibilities, or suffering a significant reduction in pay or benefits).

9



A. Race, National Origin, and Age Discrimination

Defendants contend that plaintiff does not establish a prima facie case of race, national
origin, and age discrimination, because plaintiff was not performing her job satisfactorily when
she was terminated, and because she fails to show that similarly situated employces were treated
more favorably. Plaintiff has presented no direct evidence of discrimination, and therefore the

court uses the familiar McDonnell Douglas burden-shifting analysis. Under that analytical

framework, a plaintiff bears the burden of establishing a prima facie case of discrimination by
showing that (1) she is a member of a protected class; (2) she was performing her job
satisfactorily; (3) she experienced an adverse employment action, and (4) similarly situated
employces were treatcd more favorably. Hoffman-Dombrowski v, Arlington Int'l Racecourse.
Tnc,, 254 F.3d 644, 650 (7" Cir, 2001), Tf the plaintiff establishes a prima facic casc of
discrimination, the employer must then show a nondiscriminatory reason for the employment

action, Peele v. Country Mut, Ins. Co., 288 F.3d 319, 326 (7" Cir. 2002). Ef the employer does

so, the plaintiff must then show that the employer’s cxplanation is pretextual. Id, This analysis

applies to plaintiff's claims under Section 1981 and the ADEA, as well as Title VIL Seo Lalvani

v. Cook County, 269 I.3d 785, 789 (7"" Cir. 2001) (Section 1981); Nawrot v. CPC Int'l, 277 F.3d
896, 905-06 (7" Cir, 2002) (ADEA).

Defendants first argue that plaintiff fails to meet her burden of establishing a prima facie
case because she fails to establish that she was performing her job satisfactorily when she was

terminated.’ According to defendants, plaintiff was not mecting CMH’s legitimate expectations

' Defendants do not dispute that plaintiff is a member of a protected class, or that her
discharge constituted an adverse employment action.

6



Plaintiff arrived late for work again on January 10 and 13, 2000. Plaintiff recorded a 7:30
a.m. arrival time for those dates, as well as January 4, on her time card. At Williams’ request,
Blanning e-mailed plaintiffs arrival times to Williams. Blanning’s c-mail indicated that plaintiff
had arrived late to work six times during the pay period. Plaintiff's justification for recording
incorrect arrival times was that this practice had been permitted under her former supervisor,
Paustian. Williams terminated plaintiff’s cmployment with CMH on January 13, 2000, for
falsifying her time card.

TI. Discussion

Summary judgment shall be granted “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with [any] affidavits, show thal there is no
genuine issue as to any material fact and thal the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). The court must draw all reasonable inferences in favor of
the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
The moving party bears the initial burden of demonstrating that no material issue exists for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has properly
supported its motion, the nonmoving party must offer specific facts demonstrating that a material

dispute exists, and must present morc than a scintilla of cvidence to support its position.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The Seventh Circuit has noted
that the summary judgment standard should be applied with “added rigor in employment
discrimination cases, where intent and credibility are crucial issues.” Sarsha v. Sears, Rocbuck &

Co., 3 F.3d 1035, 1038 (7" Cir, 1993).



CMH’s legitimate expectations when she was terminated.’

Nor has plaintiff established that CMH treated plaintiff differently than other similarly
situated employees. Plaintiff has offered no evidence that CMH did not terminate any employee
who was not Hispanic, not of Puerto Rican heritage, or not over the age of forty, who incorrectly
recorded timely arrivals on a time card after being instructed to accurately record arrival times.
Since plaintiff has failed to establish a prima facic case of discrimination, the court need not
consider whether defendant’s reasons for its actions were legitimate or pretextual?

RB. Hostile Work Environment

To maintain an actionable claim under a theory that a defendant’s conduct created a
hostile work environment, and thus constituted harassment in violation of Title VIT, a plaintil?
must demonstrate harassment “so severe or pervasive as to alter the conditions of [the victim’s]

employment and create an abusive working environment.” Hilt-Dyson v. City of Chicago, 282

3d 456, 462 (7" Cir.), cert. denied, 123 S. Ct. 97 (2002). The working cnvironment must be
both objectively and subjectively offensive. Id. at 463, Whether a work environment is hostile
depends on “the frequency of the discriminatory conduct; its severity, whether it is physically

threatening or humiliating, or a mere offensive ullerance; and whether it unreasonably interferes

? Although neither party mentions plaintiff’s claim of retaliation under ‘litle VIL, that
claim also fails because plaintiff cannot cstablish that she was performing her job in a
satisfactory manner. See [ilt-Dyson, 282 F.3d at 465 (to prevail on a retaliation claim, a plaintiff
nnust show that: (1) she engaged in a statutorily protected activity; (2) she was subjected to an
adverse employment action; (3) she was performing her job in a satisfactory manner; and (4) she
was treated less favorably than any other similarly situated employee who did not engage in such
protected activity).

* Given this conclusion, the court also need not consider whether plaintiff's employment
relationship provided a sufficient contractual relationship to support a Section 1981 claim.

8



Minute Order form (06/9%

United States District Court, Northern District of Ilinois

vente Magitate Jaye George W. Lindberg “Than Assigned Judge

CASE NUMBER 02 C 3598 DATE 12/30/2002
CASE Anaida Lopez vs. Children’s Memorial Hospital, et al
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) statc briefly the nature.
of the mation being presented. |

MOTION:

DOCKET ENTRY:

q) oO Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) ao Answer brief to motion due____. Reply to answer briefdue__

(4) Oo Ruling/Hcaringon_____setfor_——_at

(5) oO Status hearing[held/continued to] [set for/re-set for]on set for at

(6) oO Pretrial conference[held/continued to] [set for/re-set for] ons setfor_ at.
(7) QO Trial[set for/re-set for]on_ at

(8) O [BenchyJury trial] [Hearing] held/continued to at

(9) a) This case is dismissed [with/without] prejudice and without costs[by/agreemenUpursuant to}

COFRCP4(m) (Local Rule 41.1 CFRCP41(a)(1) [1 FRCP41(a)(2).

qo) if {Other docket entry] Defendant Angela Williams’ motion for summary judgment (17-1) is granted
in part and denied in part, Defendants’ motion for summary judgment (18-1) is granted in part and denied
inpart. Defendants’ motion to strike portions of plaintiff's response to defendants’ statement of facts (27-
1) is granted in part and denied in part. Enter memorandum opinion and order.

(11) Ml [For further detail see order attached to the original minute order_]

No notices required, advised in open court Dodigmient

Nitnber:

als

No notices required
a number of notices,

bec.3,1,2002

feputy initials

Notices mailed by judge’s staf.

Notified counsel by telephone.

oY | Docketing to mail notices.

Mail AQ 450) form.

Copy to judge/magistrate judge. LUMO pene,
PEST gy
courtroom
SLB deputy's Th bes
initials ity
Date/time féceivedin
i central Cletk’s Office nating deputy inca



discharge contravenes “a clearly mandated public policy.” Jacobson v. Knepper & Moga, P.C.,

706 N.E.2d 491, 493 (IIL. 1998), The matter “must strike at the heart of a citizen’s social rights,
dutics, and responsibilities” to implicate a clearly mandated public policy, and thus justify

application of the tort. MeGrath v. CCC Info, Servs. Inc., 731 N.£.2d 384, 391 (IIL App. CL),

appeal denied, 742 N.E.2d 329 (Il), 2000). The Thnois Supreme Court has “repeatedly and
consistently emphasized a goal of restricting the tort of retaliatory discharge.” McGrath, 731
N.E.2d at 390. To that end, the flinois Supreme Court has recognized retaliatory discharge
claims in only two settings: (1) where an employee is discharged for filing, or in anticipation of
the filing of, a claim under the Workers’ Compensation Act, 820 ILCS 305/1, et seq.; and (2)
where an employee is discharged in retaliation for “whistle blowing.” Jacobson, 706 N.E.2d at
493,

In this case, the conduct that plaintiff contends led to her discharge did not mvolve filing
aclaim under the Workers’ Compensation Act or whistle blowing. Her claim does not “strike at
the heart” of her social rights, dutics, and responsibilities, but rather “is more in the nature of a
private and individual grievance insufficient to justify a claim of wrongful discharge.” See
McGrath, 731 N.E.2d at 391. Moreover, other remedies are available to plaintiff under the
Mlinois Human Rights Act (“IHRA”). Here, plaintitf claims that her termination for complaining
about these incidents constitutes discriminatory retaliation. The IHRA provides an exclusive
remedy for human rights violations under state law, including employment discrimination, scc
775 ILCS 5/2-102(A) & 5/8-111(C), and therefore there is no other remedy [or retaliatory
discharge in employment discrimination cases under Illinois law. Bell v. American Dental

Ass’n, No. 00 C 0573, 2000 WL 1367946, at *3 (N.D. Ll. Sept. 15, 2000); Johnson v. Baxter

11



dircctly responsible for plaintiff) appear to be routine work-related activitics, and Williams’
remark to plaintiff that she should not feel singled out is not objectively harassing. In addition,
plaintiff has offered no evidence that she was physically threatened. When Williams threw a log
sheet at plaintiff, it did not hit her, and when Williams shook plaintill’s sleeve, plaintiff was not
frightened or injured. Reviewing the record before the court, and keeping in mind the factors

enumerated in Harris, the court concludes that these incidents, even considered together, do not

tise to the level of severc and pervasive harassment.

Nor has plaintiff shown that these incidents had a racial or nationa!-origin character or
purpose. The only incident in which plaintiff's race or national origin arguably was implicated
was when Williams instructed her to stop interpreting Spanish for a paticnt, stating that merely
having a Spanish surname did not qualify her to translate. However, plaintiff concedes that it
was hospital policy to limit interpreting duties to official hospital interpreters. Plaintiff has failed
fo establish that defendants’ conduct created a hostile work cnvironment.

C.  Retaliatory Discharge

The court next turns to plaintiff's claim that CMH retaliated against her, in violation of
slate law, for complaining that she was the only employee being cross-trained, asking for an
electric stapler, and complaining about not being paid for the overtime that she was working. In
recognizing the tort of retaliatory discharge, Illinois courts acknowledged that it was necessary to
preserve rights in cases where no other remedy was available to vindicate public policy.
Brudnicki v, General Elec. Co., 535 I’, Supp. 84, 89 (N.D. Il. 1982) (citing Kelsay v. Motorola.
Inc., 384 N.E.2d 353 (Ill. 1978)). Thus, to establish a claim of retaliatory discharge, a plaintiff

must show not only that she was discharged in retaliation for her activities, but also that the

10



because she [alsely recorded timely arrival times on her time card when in actuality she was
tardy. CMIH’s Employee Standards of Conduct and Work Rules lists falsification of timekeeping
records as an infraction. CMH’s Progressive Discipline Policy provides that a single violation of
the rule against falsification of time cards may result in immediate discharge. Plaintiff was
familiar with these policies.

Plaintiff responds that her previous supervisor had condoned the practice of noting a
timely arrival at work despite having arrived late, as long as the cmployce made up the lost time
during the day. Thus, according to plaintiff, CMH could not legitimately expect her to correctly
record her time on her time card without first specifically warning her that employees would no
longer be permitted to make up time as they had previously done.

However, the evidence shows that plaintiff reccived just such a warning. On January 6,
2000, after plaintiff had arrived late for the second time in a week, Williams instructed her to
accurately record her correct arrival time on her time card. Although plaintiff docs not dispute
that she received this instruction, she disputes that she and Williams had the same understanding
of the meaning of the word “accurately.” According to plaintiff, she understood that she would
be in compliance with Williams’ instruction to record her arrival time “accurately,” even if she
recorded an incorrect start time, as long as she made up any time Jost due to tardiness during the
day, resulting in no net loss of time worked for the day. The court finds that no reasonably jury
would credit plaintiff's explanation. Williams did not instruct plaintiff to record her total time
worked during the day accurately, Williams specifically told plaintiff to record her correct arrival

time. When plaintiff subsequently recorded incorrect arrival times on her time card, she was

subject to discharge under CMH’s policy. Plaintiff has failed to establish that she was mecting

4
7



1999, CMH hired defendant Blanning to supervise the clinical staff. Blanning did not have
supervisory authority over plaintiff, and Blanning and Williams did not have supervisory
authority over each other. According to defendants, Blanning nevertheless was responsible for
communicating issues that arose with the Family Service Representatives to Williams, because
Williams’ office was located in another building from the Family Service Representatives.

According to plaintiff, in cither 1997 or 1999, supervisor Martha Ellsworth discouraged
plaintiff from working overtime, due to budgetary reasons. Ellsworth told plaintiff that if she did
work overtime, “not to let her know about it.” In staff meetings, Williams also discouraged
overtime. Plaintiff worked ten hours of overtime per month in 1997, six hours per month in
1998, and six to eight hours per month in 1999, but was not paid for it.

Williams decided to start cross-training Family Service Representatives so that each
lamily Service Representative would be able to work in each department within the
Rehabilitation Serviecs cluster, as staffing needs warranied. Plaintif?’s 1999 performance review
listed participating in Family Service Representative cross-training as a goal for the upcoming
year. Plaintiff was satisfied with her performance evaluation and goals. Plaintiff was chosen to
be cross-trained first.

Plaintiff's scheduled work hours were 7:30 a.m. to 4:00 p.m. In August 1999, plaintiff
asked Williams for permission to temporarily modify her schedule to accommodate plainti {ls
child care needs. Specifically, plaintiff asked to be allowed to arrive at work twenty minutes
later and Jeave work thirty minutes earlier four days a week, and leave at 1:30 p.m. one day a
week, fora month. Williams denied plaintiff's request. Plaintiff instead used accrucd vacation

time to lake the time off. Williams allowed some of her other employces to usc “flex-time”

iv)



1277; Maksimovic v. Tsogalis, 687 N.E.2d 21, 22 (Ill. 1997).

The court concludes that plaintiff's civil conspiracy claim is preempted by the THRA.
That claim alleges that Williams conspired with Blanning to terminate plaintiff, through
Williams’ instruction to Blanning that Blanning keep track of plaintiff's arrival. Plaintiffs
Amended Complaint specifically alleges that this civil conspiracy “was motivated by Plaintiff's
age and race.” These same acts form the basis of plaintiff's racial discrimination and harassment
claims. Thus, a civil rights violation forms the core of plaintiff's theory, rather than being

“merely incidental’ to a mundane tort.” See Smith v. Chicago School Reform Bd. of Trustees,

165 F.3d 1142, 1151 (7" Cir. 1999) (citing Maksimovic, 687 N.E.2d at 23). Accordingly, the
HRA preempts her civil conspiracy claim,

ORDERED: Defendant Angela Williams’ motion for summary judgment [17-1] is
granted in part and denied in part; the motion is granted as to Count IV (civil conspiracy) and
demed as to Count VI (Fair Labor Standards Act). Defendants Children’s Memorial Hospital
and Linda Blanning’s Motion for Summary Judgment [18-1] is granted in part and denied in part;
the motion is granted as to Counts J (Section 1981), Hf (Title VI), M1 (ADEA), IV (civil
conspiracy), and V (retaliatory discharge), and denicd as to Count VI (Fair Labor Standards Act).
Defendants Children’s Memorial Hospital and Linda Blanning’s Motion to Strike Portions of

Plaintiff's Response to Defendants’ Statement of Facts [27-1] is granted in part and denied in

part.



her amended complaint, See Fed. R. Civ. P. 56(c) (“an adverse party may not rest upon the mere
allegations or denials of the adverse party’s pleading, but the adverse parly’s response, by
affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is
a genuine issue for (rial). In addition, paragraphs 41-43, 47, 54, 73, 78, and 84 of plaintif?s
responses arc not responsive to the statements thcy purport to address. Vinally, plaintiff's
response to paragraph 69 does not supply a citation to the record in support of her denial, as
required by Local Rule 56.1(b)(3)(A). The court strikes the foregoing responses, and decms
defendants’ statements of fact in thosc paragraphs admitted. 1n addition, the court disregards any
additional information or argument presented in plaintiff's responses. See Sigh! vy, St. Joseph
Health Ctrs. and Hosp., No. 97 C 4970, 1998 WL 312005, at *3 (N.D. IIL. June 4, 1998),
Defendants’ motion to strike is denied as to defendants’ remaining objections.

The following facts are undisputed, unless otherwise noted. Plaintiff is a Hispanic
woman of Puerto Rican descent, and was 45 years old during the time relevant to this action,
Plaintiff was hired by defendant CMH in 1979 as a full-time Unit Clerk, and was promoted 1o
Medical Secretary the following year. Plaintiff's position title changed to Family Service
Representative in 1997. As a Family Service Representative, plaintiff was responsible for
checking in patients, and performing clerical duties, Throughout her employment at CMH,
plaintiff worked in the Rehabilitation Services cluster of departments.

From 1990 to 1999, Glenn Paustian supervised both the clinical staff (i.c., the physicians)
and the clerical staff, including the Family Service Representatives in plaintiff’s department. Tn
carly 1999, CMH reorganized the Rehabilitation Services cluster, and hircd defendant Williams

in April 1999 to supervise the clerical functions. In July 1999, Paustian resigned. In September



iN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS DOCKETED

EASTERN DIVISION DEC 3 1 2002
ANAIDA LOPEZ, )
)
Plaintiff, )
) 02 C 3598

v. )

) Judge George W. Lindberg
CHILDREN’S MEMORIAL HOSPITAL, )
ANGELA WILLIAMS, individually, and )
LINDA BLANNING, individually, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Anaida Lopez’s amcnded complaint alleges claims of racial discrimination and
harassment under 42 U.S.C. § 1981; racial discrimination and retaliation under Title VII of the
Civil Rights Act, 42 U.S.C. § 2000c et seq.; age discrimination under the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq.; and retaliatory discharge under state Jaw against
defendant Children’s Memorial Hospital (“CMH”). The amended complaint alleges a claim of
violation of the lair Labor Standards Act, 29 U.S.C. § 201 et. seq., against CMH and defendant
Angela Williams (“Williams”). Finally, the amended complaint alleges a state law claim of civil
conspiracy against Williams and defendant Linda Blanning (“Blanning”). Before the court are
defendants’ motion to strike and motions for summary judgment, For the reasons stated below,
the motions are granted in part and denied in part

i, Factual Background

At the outset, the court must evaluate defendants’ Motion to Strike Portions of Plaintiff's
Responses to Defendants’ Statement of l’acts. The court agrees with defendants that plainuffs

Tesponses to paragraphs 66, 68, and 81 are inadequatcly supported, since plaintiff relies solely on

as



Healthcare Corp., 907 F. Supp. 271, 275-76 (N.D. Ill. 1995). Summary judgment is granted in
CMH’s favor as to plaintiffs retaliatory discharge claim.

D. Fair Labor Standards Act

Next, defendants contend that plaintiff's Fair Labor Standards Act (“I-LSA”) claim is
barred by the two-year statutc of limitations. Plaintiff responds that defendants’ conduct was
willful, and therefore a threc-ycar statute of limitations should be applicd. Plaimtiff filed her
original complaint on May 20, 2002 and an amended complaint containing the FLSA claim on
August 15, 2002. Plaintiff claims that the last time she worked overtime for which she was not
compensated was in December 19995 ‘Thus, if the statute of limitations is not extended to three
years, her claim is time-barred.

A cause of action brought under the FLSA must be commenced “within two years afler
the cause of action acerucd, except that a cause of action arising out of a willful violation may be
commenced within three years afler the cause of action accrued.” 29 U.S.C. § 255(a). To qualify
for a three-year statute of limitations, the plaintiff bears the burden of establishing that the

employer “either knew or showed reckless disregard for the matter of whether its conduct was

prohibited by the statute.” See McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988);
Bankston v. State of Illinois, 60 F.3d 1249, 1253 (7" Cir. 1995),

The evidence before the court is that in 1997 or 1999, plaintiff was “discouraged” from

3 Plaintiff's FLSA claim would relate back to the date of the original complaint for
purposes of tolling the statute of limitations only if it “arose out of the conduct, transaction, or
occurrence set forth or attempted to be sct forth in the original pleading.” Sce Fed. R. Civ. P.
15(c)(2). Because plaintiff alleges (hat she worked overtime without compensation in December
1999, it makes no difference at this point whether plaintiff's FLSA claim dates from May 20,
2002 or August 15, 2002. Therefore, the court need not resolve the issue of whether the relation
back doctrine applies.

12



ENTER:

- Lindberg
ited States District Judge

paren, __ DEC 30 2002

15