By Jeff Birren, Senior Writer
James Sobucki worked at Fox Valley Ice Arena in Geneva, Illinois, for approximately six and a half years. Fox Valley is owned by Centrum-East West Arenas Venture. It also in Geneva. Sobucki was originally on an hourly basis at the facility but was later converted to a salaried office role. A change at Centrum led to a change in duties for Sobucki, and he began cleaning restrooms. On April 3, 2019, Sobucki sued Centrum in federal court seeking overtime pay. Not surprisingly, Sobucki was not long for Centrum, and he was terminated on May 31, 2019.
Sobucki amended his complaint that July, adding a claim that he was fired in retaliation for filing the lawsuit. Centrum filed a motion for summary judgment in November 2020. Sobucki’s opposition came in January 2021, and Centrum replied in February. In August, Judge Mary Rowland denied the motion (Sobucki v. Centrum-East West Arenas Venture, LLC, N.D. Ill, E. D., Case No. 19-cv-02279 (8-5-21)).
Relevant Facts
Centrum operated two arenas in the area. Craig Welker was the general manager and oversaw operations at both. Matt Leonard was the Director of Operations at Fox Valley and was the second highest executive there. Sobucki was hired at Fox Valley in November 2012. He began as an office employee and was paid on an hourly basis. He was promoted to a salaried position in 2014. Within 18 months Welker told Sobucki that he “was not a good fit for the office manager role” and “Centrum wished to find a role for which he was better suited” (Id. at 2). Sobucki operated the Zamboni and did custodial work, including cleaning the bathrooms. He was given a choice between being on a salary or working on an hourly basis. He chose the salary and earned “at least $455 per week.”
Sobucki “worked with customers to coordinate skating competitions and hockey games for the rink” (Id. at 3). This included “scheduling, managing logistics for our-of-state participants, planning the set-up for events, providing directions, and addressing issues related to the rink, bleachers, and locker room.” Sobucki testified that “he was essentially a custodian” though he admitted that “he would occasionally ask employees for help in completing tasks” and “would also field questions from other employees and occasionally would divvy up tasks when Leonard and Welker were not present.” He did this “because he was the most experienced employee, not because he had any formal management role.”
In February 2019 Centrum sold its other arena and sought to eliminate employees. Centrum made the decision to fire Sobucki because, according to Welker, Sobucki “had mentioned that he was looking for other jobs and because his replacement had more experienced, more motivated, and more committed to the company.” Welker also testified that Sobucki “was notified in February that changes were coming to his position and he should prepare accordingly.” That he did.
Sobucki sued Centrum on April 3, 2019, claiming that Centrum violated federal and state laws for failing to pay overtime. That rarely improves employer-employee relations. Welker and Sobucki met five days later. In his deposition Sobucki stated that Welker “asked questions about why he had filed the suit” but he “declined to respond.” In his declaration Sobucki added that Welker “asked if he was sure he wanted to ‘go down this road.’” Sobucki “said he would not answer questions without his lawyer” and Welker responded, “that not answering his questions would be considered insubordination.”
Ten days later “Welker issued Sobucki an ‘Employee Warning Notice’ for failing to properly log his hours worked” (Id. at 4). Three days after that Sobucki “was issued another notice for arriving late to the arena, causing the director of tournaments to have to put out the goals himself.” This notice “warned that further infractions would result in a “final warning and/or termination.” The long knives were out. Sobucki was fired on May 31, 2019. He was told that it was “due to the restructuring.” Sobucki amended his complaint on July 30, 2019, to addthe retaliation claim.
The Court’s Analysis: Fair Labor Standards Act Claim
Federal law is simple enough: “employers are not required to pay overtime wages to ‘executive’ employees.” The regulations define “an executive when: 1) her pay exceeds a regulatory minimum; 2) her ‘primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof’; 3) she ‘customarily and regularly directs the work of two or more other employees’; 4) she ‘has the authority to hire or fire the other employees or whose suggestions and recommendations…are given particular weight.’” This is “a question of fact to be determined by a jury if there is a dispute.” It is “necessarily fact-intensive.”
Sobucki did not dispute the first element, and there was “uncontroverted evidence that his suggestions as to hiring and firing were given particular weight.” The focus was therefore on the second and third elements of the test. Centrum claimed that Sobucki was “Head of Operations.” He admittedly did not set up the department’s schedule, but he supervised and assigned tasks to other employees. Sobucki, however, “asserts that his primary duties were driving the Zamboni and custodial work” and that he “did not supervise employees or assign tasks, and he had no formal title” though “he sometimes answered questions and divvied up responsibilities as the most experienced employee—a team member coordinating with his coworkers, not manager assigning tasks.”
Sobucki’s evidence “draw primarily from his deposition and declaration” while Centrum’s evidence is “grounded in the testimony of Leonard and Welker. It is, essentially, their word against his. At summary judgment, the Court is required to consider the evidence in the light most favorable to the non-moving party” i.e., Sobucki (Id. at 5). “Given the conflicting testimony as to whether Sobucki was an exempt executive, summary judgment must be denied.”
Centrum insisted that Sobucki failed to create a genuine issue of fact, arguing that he simply denied that the was a manager “without addressing the specific factual allegations.” The Court disagreed, as “he lays out a coherent account of what his roles and responsibilities were as a Zamboni driver and custodian” and “his account contradicts specific factual claims made by Centrum.” Centrum’s evidence rests “on the testimony of two of its employees. It is up to the trier of fact to weigh the credibility of his opposing testimony.”
Centrum also tried to “undermine the record Sobucki relies upon” by arguing that it had factual contradictions. It cited a case that held that a plaintiff cannot use a declaration to contradict his deposition testimony. “Sobucki’s declaration, although at times more detailed, is generally consistent with his deposition.” Consequently, “summary judgment on the overtime claims is premature.”
“Retaliation Claim”
Sobucki alleged that he was fired “in retaliation for filing the present FLSA claim.” Centrum asserted that it was due to the closing of the other arena and had nothing to do with the lawsuit. This claim requires plausible allegations that the plaintiff engaged in protected activity and that the employer took adverse employment action, and a causal link between the two. The “record does not provide any direct evidence that Sobucki was fired because of his lawsuit.” He relied on “circumstantial evidence.” That allows a jury to infer retaliation, and it may include “(1) suspicious timing, ambiguous statements or behaviors; (2) evidence that similarly situated employees were treated differently; or (3) a pretextual reason for adverse employment action.” Close timing alone is not enough.
Sobucki did not offer evidence related to similarly situated employees, nor did he demonstrate that Centrum’s stated reasoning was pretextual. Rather, “his argument rests on Welker’s comments to him about the lawsuit five days after” it was filed, the write up ten days later, and then the write up three days after that. In his years with Centrum prior to that he had never received a write up (Id. at 6). The Court stated that this “is a close case.” Sobucki’s circumstantial evidence “is weaker” than in his cited cases. However, “a reasonable jury could find the rapid issuance of two written warnings, after years without any, suspicious.”
The “unusual resort to documented reprimands for relatively mundane missteps might have been intended to ‘set the stage’ for covert retaliation. This might be true even if” he really had been late to work or forgot to log his time. Moreover, Welker’s suggestions that the lawsuit was a mistake and his alleged frustration when Sobucki would not discuss it “may suggest that retaliation was imminent.”
“Viewing the suspicious timing, actions, and statements together, Sobucki has raised a question of fact as to the reason for his filing.” A “reasonable jury” could conclude that the firing was in retaliation for filing the FSLA complaint. The motion was denied.
Conclusion
The Court subsequently scheduled a trial setting conference. It asked if a settlement conference would be productive, and one is scheduled for November 3, 2021. They might be well served to settle. The Court stated that Sobucki’s second cause of action was a “close case” and was based “on circumstantial evidence.” There is also something strange going on here. In February 2020, one of his lawyers sought to withdraw as his counsel. In January 2021 a second member of his legal team filed a motion to withdraw. Then, less than two weeks after the summary judgment ruling, a third attorney filed a motion to withdraw. All three motions were granted so Sobucki has lost three lawyers in less than three years. Accepting a settlement would put that to bed and allow Sobucki to get on with the rest of his life.
Centrum is hardly covered in glory. To begin with, regularly cleaning restrooms is not the stuff of executives. If he was truly “Head of Operations” documentary proof would have been produced. Furthermore, Centrum needs to learn to step lightly after an employee makes legal claims. The law’s requirements fly in the face of human nature, but it is the law, and it will be enforced.
