Herrera v. DiMeo Bros.

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ARTURO HERRERA, Plaintiff, v. DIMEO BROTHERS, INC., et al., Defendants.

No. 19 C 8298

United States District Court, N.D. Illinois, Eastern Division

March 16, 2023

MEMORANDUM OPINION AND ORDER

Virginia M. Kendall United States District Judge

A few weeks after Plaintiff Arturo Herrera, who is Hispanic and Mexican, began working for Defendant DiMeo Brothers, a white employee Tim Gavin asked Herrera about his citizenship, his tattoos, and whether he was a gang member. Over one year later, Herrera overheard Gavin use an ethnic slur to describe Mexican people on a phone call with another coworker. Additionally, Herrera believes Gavin vandalized his vehicles in the DiMeo Brothers' parking lot. Herrera brings ethnicity and national origin discrimination claims under Title VII, Section 1981, and the Illinois Human Rights Act against DiMeo Brothers and its owners, John and Mark DiMeo. He also alleges violations of the Fair Labor Standards Act and the Illinois Minimum Wage Law for improper overtime compensation. Herrera now moves for partial summary judgment on the wage claims. (Dkt. 67). Defendants move for summary judgment on all counts. (Dkt. 69). For the reasons below Herrera's partial motion is denied, and Defendants' motion is granted in part and denied in part.

BACKGROUND

On November 7, 2017, Plaintiff Arturo Herrera, who is Hispanic and Mexican, began working as a laborer for Defendant DiMeo Brothers, a construction company which Defendants Mark and John DiMeo own and operate. (Dkt. 75 ¶¶ 2-3, 5-6 15; Dkt. 77 ¶¶ 1-2, 4, 8).

A. Herrera's Complaints of Discrimination

Herrera's job responsibilities included moving materials between the DiMeo Brothers yard and job sites and repairing materials in the yard. (Dkt. 77 ¶ 8). Mark and John DiMeo supervised Herrera and had authority over hiring, firing, promotion, discipline, assignments, and pay. (Dkt. 75 ¶¶ 6-11; Dkt. 77 ¶¶ 18-19). Tim Gavin, who is white, is a mechanic and shop foreman. (Dkt. 77 ¶ 3). He “was in charge of the DiMeo Brothers yard and schedules.” (Id.). Gavin also gave Herrera assignments, although he did not have hiring, firing, or disciplinary authority. (Dkt. 77 ¶¶ 18-19). DiMeo Brothers did not have a written employment policy concerning harassment or discrimination complaints. (Dkt. 80 ¶ 2). Nor did DiMeo Brothers provide anti-harassment training to its employees. (Id. at ¶ 3). Rather, Mark DiMeo told Herrera to report any problems to John DiMeo. (Id. at ¶ 4).

Herrera testified that, three or four weeks after he started working at DiMeo Brothers, Gavin asked him if he was a U.S. citizen. (Dkt. 77 ¶ 20). Gavin then asked him about his tattoos and if he was a gang member. (Id. at ¶ 20). Herrera spoke to John DiMeo about Gavin's questions, asking if Gavin “would always ask those type of questions.” (Id. at ¶ 22; Dkt. 77-1 at 28-29). On a separate occasion, between March and May 2019, Herrera testified that he overheard Gavin use an ethnic slur to describe Mexicans during a phone conversation with another coworker. (Dkt. 77 ¶ 23). Herrera never complained about this incident. (Id. at ¶ 24).

Herrera further testified that Gavin observed him more strictly than other employees, including by staying at work until Herrera left to make sure that Herrera did not steal any tools, and taking pictures of him working. (Id. at ¶¶ 25-26; Dkt. 77-1 at 32-33). Herrera also believes that Gavin did not properly repair a truck, causing Herrera to injure his finger, which Gavin disputes. (Dkt. 77 ¶ 28). Herrera did not complain to DiMeo Brothers about Gavin's strict supervision or botched truck repair. (Id. at ¶¶ 27, 28). On October 17, 2018, Herrera texted Gavin: “Thanks, T. Greatly appreciated this year.... I know I can count on you and Eric to cheer me up when I'm down.... I'm thankful that I found a workplace where I'm happy. God bless. Have a good night, Bubba.” (Id. at ¶ 29; Dkt. 77-1 at 48).

Herrera claims that his and his wife's vehicles suffered damage in the DiMeo Brothers parking lot. (Dkt. 77 ¶ 30). More than once, Herrera found screws in the vehicles' tires, and he blames Gavin. (Id. at ¶¶ 31-32, 39). Herrera believes Gavin caused air to leak from his vehicle's tire valve because Gavin had the necessary tools and once asked Herrera “how his tire was doing.” (Id. at ¶¶ 33-34). Further, Herrera believes Gavin threw rocks at his truck. (Id. at ¶¶ 35-38; Dkt. 80 ¶¶ 26-31).^[1]Underlying Herrera's belief that Gavin was behind all the vandalism incidents are Gavin's questions about citizenship, tattoos, and gang membership. (Dkt. 77 ¶ 39).

On April 5, 2019, Herrera sent John DiMeo a video recording, purportedly showing a rock damaging his windshield, which John and Mark DiMeo both viewed. (Id. at ¶¶ 40-41). Herrera also sent John DiMeo a text message about the incident: “Now I'm not saying [Gavin] did it, but I don't know who else could have broke my wind screen.” (Id. at ¶ 40). John and Mark DiMeo reviewed Herrera's video and did not investigate further. (Dkt. 80 ¶ 31).

On May 16, 2019, Herrera texted John DiMeo saying that he found rocks on the hood of his car and a crack on his new windshield. (Dkt. 77 ¶ 42). In response, John DiMeo told Herrera to park his vehicle next to Gavin's, within view of the company's security cameras. (Id.) Herrera also blames Gavin for damaging his truck's transmission harness on June 13, 2019. (Id. at ¶¶ 4344). The same day, Herrera reported the incident to John DiMeo, who asked Gavin if he had damaged the transmission harness. (Id. at ¶ 45). Gavin denied it. (Id.) Indeed, Gavin has denied ever damaging Herrera's or his wife's vehicles. (Id. at ¶ 49). After Herrera complained about the vandalism, he claims that Mark DiMeo expressed his disbelief, which Mark DiMeo denies. (Id. at ¶ 68). Herrera also claims Mark DiMeo told him to “go work in the field” despite Herrera “having a finger restriction,” which Mark DiMeo also denies. (Id.)

On June 17, 2019, Herrera claims that Gavin threatened Herrera that he would lose his job if he continued to complain. (Dkt. 80 ¶ 13). Gavin denies saying this. (Id.) Herrera also claims that DiMeo Brothers' superintendent, Pete Volkening, called and told Herrera “to stop complaining about his vehicle,” which Defendants dispute. (Id. at ¶ 14). Herrera also claims that Mark DiMeo yelled at him and told him “that if he wanted to lose his job over a truck to go home.” (Id. at ¶ 15). Mark DiMeo also allegedly said that he would take Gavin's side “no matter what,” and asked Herrera if he was trying to “make his guys look bad.” (Id. at ¶¶ 16, 18). Mark DiMeo denies making these statements. (Id. at ¶¶ 15-16, 18). On a phone call on June 17, 2019, John DiMeo told Herrera that he “got everybody fired up with [who he thought damaged his vehicles]. Okay? And you've got a person that's been here since we put up the shop that's been very loyal to us and that's a huge accusation ” (Id. at ¶ 21).

Herrera resigned on June 17, 2019 by texting John DiMeo: “I quit. I'm not going to put up with harassment.” (Dkt. 77 ¶ 50). Herrera resigned because “nothing was done,” and he believed that “something worse would happen” if he stayed. (Id. at ¶ 51). The day after he resigned, Herrera called John DiMeo and said, “I'm not accusing anybody,” and “I'm not saying [Gavin] did it”- meaning, damaged his or his wife's vehicles. (Id. at ¶¶ 52-54). During that phone call, John DiMeo said:

You've gotta understand, we've worked with [Gavin] for 15 years, we're gonna defend him.....I'm not going to take out my best guy that I've had you know over 15 years over . . . a rock....We're running a business here....[H]e's been here 15 years taking care of our shop for us. So unless if I see his face and arm throw something at your car, I'm not going to do anything honestly.

(Dkt. 80 ¶ 25).

B. Herrera's Compensation

At the beginning of Herrera's employment, DiMeo Brothers agreed to pay Herrera for 40 hours of work per week, even if Herrera worked less. (Dkt. 81 ¶¶ 6-7). DiMeo Brothers also agreed to pay Herrera overtime when he worked more than 40 hours per week after subtracting hours for when Herrera arrived at work late or left early. (Id. at ¶ 7). Herrera understood the initial agreement governing his pay to be temporary. (Dkt. 77-1 at 18). During busier times of year, DiMeo Brothers agreed to pay Herrera a guaranteed 45 hours per week including five hours of overtime pay. (Id. at 25; Dkt. 77-4 at 44-45).^[2]

Herrera recorded the number of hours he worked on time sheets and submitted them to DiMeo Brothers, as the company required. (Dkt. 75 ¶¶ 22, 40; Dkt. 77 ¶ 10).^[3]Herrera's hours varied. (Dkt. 77 ¶ 11). Herrera testified that, when he started the job, Mark DiMeo told him to write eight hours on his time sheets, which Mark DiMeo denies. (Id.at ¶ 13; Dkt. 77-1 at 18; Dkt. 77-4 at 40). Regardless, Herrera recorded his overtime hours “as a habit.” (Dkt. 77 ¶ 13; Dkt. 771 at 26). DiMeo Brothers' accountant reviewed Herrera's time sheets, and Mark DiMeo reviewed the accountant's work. (Dkt. 77 ¶ 16). Herrera's pay stubs reflect the weekly hours for which DiMeo Brothers paid him. (Id. at ¶ 17).

On January 19, 2018, DiMeo Brothers paid Herrera for 38 hours of work following a pay period for which Herrera recorded 39 hours of work. (Id.at ¶¶ 25-26; Dkt. 66-6 at 3-4). Similarly, DiMeo paid Herrera for 40 hours of work on both February 16 and 23, 2018, after Herrera recorded 41 hours of work for each of the corresponding pay periods. (Dkt. 75 ¶¶ 27-30; Dkt. 66-6 at 5-8).

The Court's review of Herrera's pay stubs and time sheets revealed discrepancies on 27 additional dates-totaling more than 50 hours that appeared on Herrera's time sheets but not his pay stubs. (Dkt. 66-6).^[4] Defendants dispute that Herrera's time sheets...