IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

DAVID DEPYPER and KATE MILASHUS, 

Individually and on Behalf of All Other 

Persons Similarly Situated, 

Plaintiffs, 

v. 

ROUNDY’S SUPERMARKETS INC. and 

ROUNDY’S ILLINOIS, LLC, d/b/a 

MARIANO’S, 

Defendants.

) 

) 

) 

) COLLECTIVE AND CLASS ACTION 

) COMPLAINT 

) 

) 

) Jury Trial Demanded

) 

) 

) Civil Action No. ___________ 

) 

)

INTRODUCTION 

Plaintiffs David DePyper (“Plaintiff DePyper”) and Kate Milashus (“Plaintiff Milashus”) 

(collectively “Plaintiffs”), individually and on behalf of all others similarly situated, through 

counsel, upon personal knowledge and upon information and belief as to other matters, files this 

Collective and Class Action Complaint (the “Complaint”) against Defendants Roundy’s 

Supermarkets Inc. (“Roundy’s”) and Roundy’s Illinois LLC, d/b/a Mariano’s (“Mariano’s”) 

(collectively “Defendants”), seeking all available relief under 1) the Fair Labor Standards Act of 

1938 (“FLSA”), 29 U.S.C. §§ 201, et. seq., and 2) the Illinois Minimum Wage Act, 820 ILCS 

105/1 et seq. (“IMWL”). The following allegations are based on Plaintiffs’ personal knowledge 

and belief and upon information made known to Plaintiffs. 

NATURE OF THE ACTION 

1. This action seeks to recover unpaid overtime compensation under the FLSA for 

(i) Plaintiff DePyper and other current and former Meat Managers (a/k/a Manager of Meat or 

Manager of Meat and Seafood), and similarly situated current and former employees holding 

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comparable positions but different titles employed by Defendants in the United States 

(collectively “MMs”); and (ii) Plaintiff Milashus and other current and former Bakery Managers 

(a/k/a Manager of Bakery), and similarly situated current and former employees holding 

comparable positions but different titles employed by Defendants in the United States 

(collectively “BMs”), who worked more than 40 hours in any given workweek, from three years 

before the date this Complaint was filed until entry of judgment in this matter (the “Relevant 

Time Period”), and who elect to opt into this action pursuant to the Fair Labor Standards Act 

(“FLSA”), 29 U.S.C. § 216(b) (the “Collective.”) 

2. This action also seeks to recover unpaid overtime compensation under the Illinois 

Minimum Wage Act, 820 ILCS 105/1 et seq. (“IMWL”) for Plaintiffs and other current and 

former MMs and BMs, who worked more than 40 hours in any workweek at any Mariano’s 

location in Illinois during the Relevant Time Period, pursuant to Fed. R. Civ. P. 23 (the “Illinois 

Class”). 

JURISDICTION AND VENUE 

3. This Court has jurisdiction over Plaintiffs’ FLSA claims pursuant to 29 U.S.C. § 

216(b) and 28 U.S.C. § 1331 and supplemental jurisdiction over Plaintiffs’ state law claim 

pursuant to 28 U.S.C. §§ 1332 and 1367. 

4. Venue is proper pursuant to 28 U.S.C. § 1391 because a substantial part of the 

events or omissions giving rise to the claims occurred in this District and Plaintiffs reside in this 

District. 

5. Upon information and belief, Defendants regularly conduct business in this 

district. 

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6. This Court is empowered to issue a declaratory judgment pursuant to 28 U.S.C. 

§§ 2201 and 2202. 

THE PARTIES 

7. Plaintiff DePyper is an individual residing in Oak Forest, Illinois. 

8. Plaintiff DePyper was employed by and was permitted to work for Defendants 

from approximately January 2014 through January 2019 at multiple Mariano’s locations. 1

9. Plaintiff Milashus is an individual residing in River Forest, Illinois. 

10. Plaintiff Milashus was employed by and was permitted to work for Defendants as 

a BM from approximately May 2018 through March 2019 at Defendants’ Elmhurst and 

Westchester locations. 

11. Plaintiffs have each consented in writing to be a party to this action, pursuant to 29 

U.S.C. § 216(b), and copies of their consents are attached hereto. 

12. Defendant Roundy’s is a corporation organized and existing under the laws of 

Wisconsin, with its principal offices at 875 East Wisconsin Avenue, Milwaukee, WI 53202. 

According to its website, Roundy’s Supermarkets, Inc. is a “leading grocer in the Midwest” and 

a wholly-owned subsidiary of the publicly-traded Kroger Co., located in Cincinnati, Ohio.2

Roundy’s Supermarkets, Inc. operates over 150 retail grocery stores, including over 40 

Mariano’s locations throughout the Chicagoland area.3

1 During his tenure with Defendants, Plaintiff DePyper also worked on occasion as a “travel team 

manager,” a position separate and distinct from the MM position. Plaintiff DePyper’s claims are 

limited to his time as a MM. 

2

See Roundy’s Supermarket, Inc.’s Home Page, available at https://www.roundys.com (last 

visited March 30, 2020) 

3

Id.

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13. Defendant Mariano’s is a limited liability corporation organized and existing 

under the laws of Wisconsin, with its principal offices at 875 East Wisconsin Avenue, 

Milwaukee, WI 53202. 

14. At all times relevant herein, Defendant Mariano’s has been an employer within 

the meaning of Section 3(d) of the FLSA, 29 U.S.C. § 203(d), and Section 105/3(c) of the 

IMWL. 

15. At all times relevant herein, Defendant Roundy’s has been an employer within the 

meaning of Section 3(d) of the FLSA, 29 U.S.C. § 203(d), and Section 105/3(c) of the IMWL 

16. At all times relevant herein, Defendants were jointly Plaintiffs’ employer within 

the meaning of Section 3(d) of the FLSA, 29 U.S.C. § 203(d), and Section 105/3(c) of the 

IMWL. 

17. At all times relevant herein, Defendant Mariano’s has been an enterprise within 

the meaning of Section 3(r) of the FLSA, 29 U.S.C. § 203(r). 

18. At all times relevant herein, Defendant Roundy’s has been an enterprise within 

the meaning of Section 3(r) of the FLSA, 29 U.S.C. § 203(r). 

19. At all times relevant herein, Defendant Mariano’s has been an enterprise engaged 

in commerce or the production of goods for commerce within the meaning of Section 3(s)(1) of 

the FLSA because it has had employees engaged in commerce or in the production of goods for 

commerce, or employees handling, selling, or otherwise working on goods or materials that 

have moved in or were produced for commerce by any person, 29 U.S.C. § 203(s)(1). Further, 

Defendant Mariano’s has had (and has) a gross volume of sales, made or done business in an 

amount of at least $500,000. 

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20. At all times relevant herein, Defendant Roundy’s has been an enterprise engaged 

in commerce or the production of goods for commerce within the meaning of Section 3(s)(1) of 

the FLSA because it has had employees engaged in commerce or in the production of goods for 

commerce, or employees handling, selling, or otherwise working on goods or materials that 

have moved in or were produced for commerce by any person, 29 U.S.C. § 203(s)(1). Further, 

Defendant Roundy’s Supermarkets, Inc. has had (and has) a gross volume of sales, made or 

done business in an amount of at least $500,000. 

21. At all times relevant herein, Plaintiffs and all similarly situated MMs and BMs 

were engaged in commerce or in the production of goods for commerce as required by 29 

U.S.C. §§ 206-207. 

22. Defendants issued paychecks to the Plaintiffs and all similarly situated employees 

during their employment. 

23. Defendant Mariano’s suffered, permitted or directed the work of Plaintiffs and 

similarly situated employees, and Defendant Mariano’s benefited from work performed by 

Plaintiffs and similarly situated employees. 

24. Defendant Roundy’s suffered, permitted or directed the work of Plaintiffs and 

similarly situated employees, and Defendant Roundy’s benefited from work performed by 

Plaintiffs and similarly situated employees. 

25. Pursuant to Defendants’ policy, pattern, and practice, Defendants did not pay 

Plaintiffs and other similarly situated employees proper overtime wages for hours they worked 

for Defendants’ benefit in excess of 40 hours in a workweek. 

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FACTUAL ALLEGATIONS

26. Defendants employed Plaintiffs and the Collective and Illinois Class Members as 

MMs and BMs. 

27. Defendants maintain control, oversight, and discretion over the operation of its 

retail grocery stores, including its employment practices with respect to Plaintiffs, the Collective 

Members, and the Illinois Class Members. 

28. Plaintiffs and the Collective and Illinois Class Members performed work as MMs 

and BMs that was integrated into the normal course of Defendants’ business. 

29. Consistent with Defendants’ policy, pattern and/or practice, Plaintiffs and the 

Collective and Illinois Class Members regularly worked in excess of 40 hours per workweek 

without being paid premium overtime wages, in violation of the FLSA and Illinois law. 

30. During their time as a MM and BM, respectively, Plaintiff DePyper and Plaintiff 

Milashus routinely worked more than 40 hours a week – and frequently more than 60 hours per 

week – but were not paid overtime compensation for the hours they worked in excess of 40. 

31. Defendants assigned all of the work performed by Plaintiffs and the Collective and 

Illinois Class Members, and are aware of all the work that they have performed. 

32. The work primarily performed by Plaintiffs and the Collective and Illinois Class 

Members required little specialized skills, no capital investment, and did not include managerial 

responsibilities or the exercise of meaningful independent judgment and discretion. 

33. Throughout the Relevant Time Period, Plaintiff DePyper and the Collective and 

Illinois Class Member MMs performed the same primary job duties, including many or all of 

the following examples: cutting meat, waiting on customers, preparing, cooking, and wrapping 

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meat department orders, unloading and shelving (or “throwing”) both frozen and fresh meat 

deliveries, maintaining and keeping replenished shelves and displays, and cleaning. 

34. Throughout the Relevant Time Period, Plaintiff Milashus and the Collective and 

Illinois Class Member BMs performed the same primary job duties, including many or all of the 

following examples: baking, waiting on customers, preparing bakery department orders, 

stocking shelves and displays, and cleaning. 

35. Throughout the Relevant Time Period, the primary job duties of Plaintiffs and the 

Collective and Illinois Class Members did not include: hiring, firing, disciplining, directing the 

work of other employees, or exercising meaningful independent judgment and discretion. 

36. The primary job duties of Plaintiffs and the Collective and Illinois Class Members 

did not materially differ from the duties of non-exempt hourly paid employees, which included 

many duties that were manual and non-exempt in nature. The performance of manual labor and 

non-exempt duties occupied the vast majority of Plaintiffs’ and the Collective and Illinois Class 

Members’ working hours. 

37. Pursuant to a centralized, company-wide policy, pattern and/or practice, 

Defendants classified all MMs and BMs and other similarly situated current and former 

employees holding comparable positions but different titles as exempt from the overtime 

provisions of the FLSA and Illinois law. 

38. Upon information and belief, Defendants did not perform a person-by-person 

analysis of the job duties of MMs or BMs when making the decision to classify all of them 

uniformly as exempt from the overtime protections of the FLSA and the IMWL. 

39. Defendants established labor budgets to cover labor costs for the stores in which 

Plaintiffs and similarly situated MMs and BMs worked. The wages of Defendants’ store-level 

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employees were deducted from the labor budgets. However, Defendants did not provide 

sufficient money in the labor budgets to cover all hours needed to complete the necessary 

manual and non-exempt tasks in each store. Defendants knew or recklessly disregarded the fact 

that the underfunding of store labor budgets resulted in Plaintiffs and other similarly situated 

MMs and BMs (who were not paid overtime) working more than 40 hours in a workweek 

without receiving any additional overtime compensation, which allowed Defendants to avoid 

paying additional wages (including overtime) to the non-exempt, store-level employees. 

40. Defendants knew, by virtue of the fact that their Store Managers (as its authorized 

agents) actually saw Plaintiffs and other similarly situated MMs and BMs perform primarily 

manual labor and non-exempt duties, that as a result of the underfunded labor budgets the 

amount of money available to pay non-exempt employees to perform such work was limited 

(and, ultimately, insufficient). Defendants knew that Plaintiffs and other similarly situated MMs 

and BMs were performing the work of non-exempt employees and, based on their actual job 

duties, MMs and BMs did not fall within any FLSA or IMWL exemptions. Defendants were 

aware of their obligations under the FLSA and the laws of Illinois, and acted willfully and/or 

recklessly in failing to classify Plaintiffs and other similarly situated MMs and BMs as nonexempt employees. 

41. Defendants’ unlawful conduct, as described above, was willful and/or in reckless 

disregard of the FLSA and IMWL, and accomplished through Defendants’ centralized, 

company-wide policy, pattern, and practice of minimizing labor costs by violating the FLSA 

and IMWL. 

42. As part of its regular business practice, Defendants intentionally, willfully, and 

repeatedly engaged in a policy, pattern, and practice of violating the FLSA and related Illinois 

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laws with respect to Plaintiffs and the Collective and Illinois Class Members. This policy, 

pattern, and practice includes, but it is not limited to, Defendants’ knowledge of their 

obligations and the kind of work that Plaintiffs and the Collective and Illinois Class Members 

were, and have been, performing. As a result, Defendants have: 

a. willfully misclassified Plaintiffs and members of the Collective and Illinois 

Class; 

b. willfully failed to pay Plaintiffs and the members of the Collective and Illinois 

Class overtime wages for hours they worked in excess of 40 hours per week; and 

c. willfully failed to provide enough money in its store-level labor budgets for nonexempt employees to perform their duties and responsibilities, forcing MMs and 

BMs to perform such non-exempt tasks. 

43. Defendants’ willful violations of the FLSA and IMWL are further demonstrated 

by the fact that during the course of the Collective and Class Action Periods and continuing to 

the present, Defendants have failed to maintain accurate and sufficient time records for 

Plaintiffs and the members of the Collective and Illinois Class. Defendants acted recklessly or in 

willful disregard of the FLSA and Illinois law by instituting a policy and/or practice that did not 

allow Plaintiffs to record all hours worked. 

44. Due to the foregoing, Defendants’ failure to pay overtime wages for work 

performed by the Collective and Illinois Class Members in excess of 40 hours per workweek 

was willful and/or reckless, and has been widespread, repeated and consistent. 

FLSA COLLECTIVE ACTION ALLEGATIONS 

45. Pursuant to 29 U.S.C. §§ 207 and 216(b), Plaintiffs seek to prosecute their FLSA 

claims as a Collective Action on behalf of all persons who are or were formerly employed by 

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Defendants as MMs or BMs, and individuals holding comparable salaried positions but with 

different titles, within the United States at any time during the Relevant Time Period. 

46. Defendants are liable under the FLSA for, inter alia, failing to pay premium 

overtime wages to Plaintiffs and other similarly situated employees. 

47. Upon information and belief, there are likely dozens of similarly situated current 

and former MMs and BMs who have not been paid premium overtime wages in violation of the 

FLSA and who would benefit from the issuance of a court-supervised notice of this lawsuit and 

the opportunity to join. Thus, notice should be sent to the Collective Action Members pursuant 

to 29 U.S.C. § 216(b). 

48. The similarly situated employees are known to Defendants, are readily 

identifiable, and can be located through Defendants’ records. 

ILLINOIS CLASS ALLEGATIONS 

49. Pursuant to Fed. R. Civ. P. 23(a), (b)(2) and (b)(3), Plaintiffs seeks to prosecute 

their IMWL claims as a class action on behalf of all persons who are or were formerly employed 

by Defendants as MMs or BMs at any time during the Relevant Time Period (the “Illinois 

Class”). 

50. The persons in the Illinois Class are so numerous that their joinder is 

impracticable. 

51. There are questions of law and fact common to the Illinois Class and such 

questions predominate over questions solely affecting individual members of the Class (for 

example, whether Defendants have misclassified MMs and BMs as exempt from the overtime 

provisions of the IMWL). 

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52. Plaintiffs’ claims are typical of the claims of the Illinois Class, Plaintiffs are 

adequate representatives to fairly prosecute the interests of the Class, and they have retained 

competent counsel to advance the interests of the Class. 

53. A class action in superior to other methods of adjudicating the IMWL 

misclassification claims set forth in this case. 

FIRST CAUSE OF ACTION 

(FLSA: UNPAID OVERTIME WAGES) 

(Brought on Behalf of Plaintiffs and All Collective Action Members) 

54. Plaintiffs, on behalf of themselves and all Collective Action Members, re-allege 

and incorporate by reference paragraphs 1 through 48 as if they were set forth again herein. 

55. At all relevant times, Defendant Mariano’s has been, and continues to be, an 

employer engaged in interstate commerce and/or the production of goods for commerce, within 

the meaning of the FLSA, 29 U.S.C. §§ 206(a) and 207(a). 

56. At all relevant times, Defendant Roundy’s has been, and continues to be, an 

employer engaged in interstate commerce and/or the production of goods for commerce, within 

the meaning of the FLSA, 29 U.S.C. §§ 206(a) and 207(a). 

57. At all relevant times, Defendants employed Plaintiffs, and employed, or continue 

to employ, each of the Collective Members within the meaning of the FLSA. 

58. Defendants have engaged in a widespread pattern and practice of violating the 

FLSA, as described in this Complaint. 

59. The overtime wage provisions set forth in 29 U.S.C. §§ 201, et seq., apply to 

Defendants. 

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60. At all relevant times and continuing to the present, Defendants have had a policy 

and practice of refusing to pay premium overtime compensation to their MMs and BMs for 

hours worked in excess of 40 hours per workweek. 

61. As a result of Defendants’ willful failure to compensate its employees, including 

Plaintiffs and the Collective Members, at a rate not less than one and one-half times the regular 

rate of pay for work performed in excess of 40 hours in a workweek, Defendants have violated 

and, continue to violate, the FLSA, 29 U.S.C. §§ 201, et seq., including 29 U.S.C. §§ 207(a)(1) 

and 215(a). 

62. As a result of Defendants’ willful failure to record time and compensate its 

employees, including Plaintiffs and the Collective Members, Defendants failed to make, keep, 

and preserve records with respect to each of its employees sufficient to determine the wages, 

hours and other conditions and practices of employment in violation of the FLSA, 29 U.S.C. §§ 

201, et seq., including 29 U.S.C. §§ 211(c) and 215(a). 

63. As a result of Defendants’ policy and practice of minimizing labor costs by 

underfunding labor budgets for their stores, Defendants knew or recklessly disregarded the fact 

that Plaintiffs and the Collective Members were primarily performing manual labor and nonexempt tasks. 

64. Due to Defendants’ (a) failure to provide enough labor budget funds, (b) failure to 

take into account the impact of the underfunded labor budgets on the job duties of Plaintiffs and 

the Collective Members, (c) actual knowledge, through their store-level and district managers 

that the primary duties of Plaintiffs and the Collective Members were manual labor and other 

non-exempt tasks, (d) failure to perform a person-by-person analysis of Plaintiffs’ and the 

Collective Members’ job duties to ensure that they were performing exempt job duties, (e) 

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policy and practice that did not allow Plaintiffs and Collective Members to record all hours 

worked, Defendants knew and/or showed reckless disregard that its conduct was prohibited by 

the FLSA. 29 U.S.C. § 255(a). 

65. As a result of Defendants’ FLSA violations, Plaintiffs, on behalf of themselves 

and the Collective Members, are entitled to (a) recover from Defendants their unpaid wages for 

all of the hours worked by them, as premium overtime compensation; (b) recover an additional, 

equal amount as liquidated damages for Defendants’ willful violations of the FLSA; and, (c) 

recover their unreasonably delayed payment of wages, reasonable attorneys’ fees, and costs and 

disbursements of this action, pursuant to 29 U.S.C. § 216(b). 

66. Defendants’ violations of the FLSA have been willful, thus a three-year statute of 

limitations applies, pursuant to 29 U.S.C. § 255.

SECOND CAUSE OF ACTION 

(IMWL: UNPAID OVERTIME WAGES) 

(Brought on Behalf of Plaintiffs and the Illinois Class) 

67. Plaintiffs and the Illinois Class re-allege and incorporate by reference paragraphs 

1–44 and 49-53. 

68. At all relevant times, Plaintiffs and the Illinois Class Members were employees of 

Defendants, and Defendants were employers within the meaning of the IMWL, 820 ILCS 

105/3(c). 

69. Defendants misclassified Plaintiffs and Illinois Class Members as exempt from 

the overtime provisions of the IMWL and failed to pay them overtime for hours worked in 

excess of 40 in a workweek. 

70. Plaintiffs and Illinois Class Members consistently worked more than 40 hours in a 

workweek without being paid overtime compensation. 

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71. Plaintiffs and Illinois Class Members are entitled to unpaid overtime under the 

IMWL as well as all other relief provided by law, including all penalties and interest applicable 

to the weeks worked, including but not limited to (as applicable) treble the amount of the unpaid 

overtime, damages in the amount of 5% of the amount of any such unpaid overtime for each 

month following the date of payment during which such overtime remains unpaid, prejudgment 

interest, and attorneys’ fees and costs pursuant to §12(a) of the IMWL, 820 ILCS 105/12. 

PRAYER FOR RELIEF 

WHEREFORE, Plaintiffs and the Collective Members and Illinois Class Action 

Members are entitled to and pray for the following relief: 

a. Designation of this action as an FLSA collective action on behalf of Plaintiffs 

and the Collective Members and prompt issuance of notice pursuant to 29 U.S.C. 

§ 216(b), to all similarly situated members of the Collective, apprising them of 

the pendency of this action, permitting them to assert timely FLSA claims in this 

action by filing individual Consents pursuant to 29 U.S.C. § 216(b); 

b. Certification of this action as a class action on behalf of Illinois Class Members 

and prompt issuance of a notice to all similarly-situated persons, apprising them 

of the pendency of this action, permitting them to opt-out or to be bound by any 

judgment in the matter; 

c. A declaratory judgment that the practices complained of are unlawful under the 

FLSA and IMWL; 

d. An injunction requiring Defendants to cease their unlawful practices; 

e. An award of unpaid wages for all hours worked in excess of 40 hours in a 

workweek, at a rate of one and one-half times the regular rate of pay under the 

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FLSA and IMWL, using the following common methodology for calculating 

damages: ((Annual Salary ÷ 52) ÷ 40) x Total Number of Overtime Hours 

Worked x 1.5; 

f. An award of liquidated damages under the FLSA to the Plaintiffs and Collective 

Action Members as a result of Defendants’ willful failure to pay for all hours 

worked in excess of 40 hours in a workweek, at a rate of one and one-half times 

the regular rate of pay pursuant to 29 U.S.C. § 216; 

g. An award of damages under the IMWL, as applicable based on weeks worked, 

including for pre-amendment periods 2% of the amount of any unpaid overtime 

for each month following the date of payment during which such unpaid 

overtime remains unpaid, and for post-amendment periods (1) treble the amount 

of the unpaid overtime; and (2) 5% of the amount of any unpaid overtime for 

each month following the date of payment during which such unpaid overtime 

remains unpaid; 

h. An award of damages representing the employer’s share of FICA, FUTA, state 

unemployment insurance, and any other required employment taxes; 

i. An award of prejudgment and post-judgment interest; 

j. An award of costs and expenses of this action together with reasonable attorneys’ 

and expert fees and an award of a service payment to the Plaintiffs; 

k. Such other and further relief as this Court deems just and proper. 

DEMAND FOR TRIAL BY JURY 

Pursuant to FED. R. CIV. P. 38(b), Plaintiffs and the Collective Members demand a trial 

by jury on all questions of fact raised by the Complaint. 

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Dated: April 14, 2020 By: ___s/ Bethany A. Hilbert______________ 

C. Andrew Head 

Bethany Hilbert 

Head Law Firm, LLC 

4422 N. Ravenswood Ave. 

Chicago, IL 60640 

Tel: (404) 924-4151 

Fax: (404) 796-7338 

Email: ahead@headlawfirm.com

Fran L. Rudich* 

Seth R. Lesser* 

Christopher M. Timmel* 

KLAFTER, OLSEN & LESSER, LLP 

Two International Drive, Suite 350 

Rye Brook, NY 10573 

Tel: (914) 934-9200 

Fax: (914) 934-9220 

Email: fran@klafterolsen.com

Email: seth@klafterolsen.com

Email: christopher.timmel@klafterolsen.com

Attorneys for Plaintiffs, Collective and the Illinois 

Class 

*to seek admission pro hac vice 

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