IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION DARYL SUTULA-JOHNSON, ) ) Plaintiff, ) ) No. 2015 C 2378 VS. ) ) OFFICE DEPOT, INC., a Delaware corporation, —_) Judge Sharon Johnson Coleman ) Magistrate Judge Sidney I. Schenkier Defendant. ) PLAINTIFF’S MOTION FOR JUDGMENT NOW COMES Plaintiff, Daryl Sutula-Johnson, by her attorney, Wayne B. Giampietro, and moves the Court to enter final Judgment in her favor herein, and in support thereof represents unto the Court as follows: INTRODUCTION On July 17, 2018, the Court of Appeals issued its opinion in this case. In that opinion, the Court held that the “incentive payments” made by Defendant to Plaintiff during the time she was employed by it were commissions under the Illinois Wage Payment and Collection Act. (Opinion, pp. 17-19). As such, Defendant was required to pay those commissions to Plaintiff at least monthly. (Opinion, p. 20-22). The parties have reached agreement that Defendant owes the following amounts to Plaintiff: Unpaid commissions due upon Plaintiff's resignation as an employee: $60,235.90 Attorney’s Fees pursuant to the Wage Payment & Collection Act: 25,354.51
The parties have not reached agreement as to the following amounts: 1. The amount due to Plaintiff for late payments of her commissions from July 1, 2014 through December 31, 2015. 2. Whether Plaintiff is entitled to receive interest on the amounts paid to her later than allowed by the Wage Payment and Collection Act, I. PLAINTIFF IS ENTITLED TO A PENALTY OF 2% PER MONTH ON LATE PAYMENTS OF THE COMMISSIONS SHE EARNED Plaintiff brought this suit to recover damages for Defendant’s refusal to comply with the provisions of the Illinois Wage Payment and Collection Act. The Court of Appeals has ruled that Defendant failed to comply with that statute. The statute provides: Sec. 14. (a) Any employee not timely paid wages, final compensation, or wage supplements by his or her employer as required by this Act shall be entitled to recover through a claim filed with the Department of Labor or in a civil action, but not both, the amount of any such underpayments and damages of 2% of the amount of any such underpayments for each month following the date of payment during which such underpayments remain unpaid. In a civil action, such employee shall also recover costs and all reasonable attorney's fees. 820 ILCS 115/14 Defendant concedes that it is required to pay a penalty of 2% per month to Plaintiff on late payment of the commissions earned by Plaintiff. However, the parties have not agreed upon the amount of that penalty. Plaintiff has prepared a table showing the late payments of commissions due to her, and the amount of the 2% penalty to be paid to her for each late payment of her commissions. That calculation is attached hereto, showing the date each commission was earned, the date it was actually paid, and the amount of the penalty resulting from that late payment. As discussed below, that table also includes the amount of interest owed on each such late payment.
Il. PLAINTIFF IS ENTITLED TO RECEIVE INTEREST ON THE COMMISSIONS PAID LATE TO PLAINTIFF AND THE COMMISSIONS NOT YET PAID TO HER
The provisions of the Illinois Interest Act are clear: “Creditors shall be allowed to receive at the rate of five (S$) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing...” 815 ILCS 205/2. Defendant required Plaintiff to sign its Sales Incentive Plan, which she did. Thus, the commissions due to Plaintiff were earned pursuant to an “instrument in writing” as defined in the Interest Act. It has long been held that under Illinois law, litigants are entitled to prejudgment interest 1f the damages are liquidated and capable of easy calculation. Stanley Gudyka Sales Co., Inc. v. Lacy Forest Products Co., 915 F.2d 273, 279 (7th Cir. 1990) This rule applies to commissions which have been earned by employees such as Plaintiff. Dallis v. Don Cunningham and Associates, 11 F.3d 713, 718 (7th Cir. 1993) While some cases have denied interest on the basis that the amounts due were not easily determinable, there is no such question here, as the amount of commissions due to Plaintiff are clearly set forth. They were paid to Plaintiff, but not in a timely manner. Thus, she is entitled to interest on those commissions from the date they were due until the date they were actually paid. The way to make a prevailing party whole is to provide prejudgment interest. Medcom Holding v. Baxter Travenol Labs. Inc., 200 F.3d 518, 519 (7th Cir. 2000). Compensation deferred is compensation reduced by the time value of money. In re Milwaukee Cheese Wisconsin, Inc., 112 F.3d 845, 849 (7" Cir, 1997). Prejudgment interest is an element of complete compensation. West Virginia v. United States, 479 U.S. 305, 310 (1987). Defendant has argued that Plaintiff is not entitled to recover interest on the unpaid commissions, because allowing her to recover both the 2% penalty under the Wage Act and
interest would be double recovery. That argument is based upon decisions under the Fair Labor Standards Act, which are not analagous to this case. The penalty under the FLSA doubles the amount of unpaid wages. Some courts have held under the FLSA that adding interest onto an award of a double payment of wages would be double recovery. This is not the case here. The Supreme Court has explained that there is a difference between liquidated damages under the FLSA and other employment statutes in Zrans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed. 2d 523 (1985), The double payment amount due under the FLSA is to be awarded whenever the employer fails to pay the correct amount mandated by that statute. The situation is different in other instances, such as under the Age Discrimination Act, where the double payment penalty is to be awarded only where the employer’s conduct is willful. 469 U.S. at 125. Based upon this Supreme Court decision, numerous courts have held that the award of pre-judgment interest is a different type of damage, which is properly imposed in addition to the award of a penalty or punitive damages. Starceski v. Westinghouse Electric Corp., 54 F.3d 1089 (Third Cir. 1995). In Illinois, interest is a proper award of damages in a case brought under the Wage Act. Elsener v. Brown, 2013 IL App (2d) 120209, 996 N.E.2d 84, 374 Ill.Dec. 637, 84. To hold that a 2% award of interest deprives a wronged employee of a 5% interest award would be anomalous indeed. Such a holding would reduce the amount an employee is entitled to receive when an employer is found to have violated a law specifically designed to protect employees from the kind of misconduct found in this case. The 2% allowed by the Wage Payment and Collection Act is a penalty. Boggs v. Newman-Alton, Inc., 2014 IL App (4th) 130768 423. That amount is above and beyond any other amounts Plaintiff is entitled to receive as a part of her entitlement to proper compensation.
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION DARYL SUTULA-JOHNSON, ) ) Plaintiff, ) ) No. 2015 C 2378 VS. ) ) OFFICE DEPOT, INC., a Delaware corporation, —_) Judge Sharon Johnson Coleman ) Magistrate Judge Sidney I. Schenkier Defendant. ) PLAINTIFF’S MOTION FOR JUDGMENT NOW COMES Plaintiff, Daryl Sutula-Johnson, by her attorney, Wayne B. Giampietro, and moves the Court to enter final Judgment in her favor herein, and in support thereof represents unto the Court as follows: INTRODUCTION On July 17, 2018, the Court of Appeals issued its opinion in this case. In that opinion, the Court held that the “incentive payments” made by Defendant to Plaintiff during the time she was employed by it were commissions under the Illinois Wage Payment and Collection Act. (Opinion, pp. 17-19). As such, Defendant was required to pay those commissions to Plaintiff at least monthly. (Opinion, p. 20-22). The parties have reached agreement that Defendant owes the following amounts to Plaintiff: Unpaid commissions due upon Plaintiff's resignation as an employee: $60,235.90 Attorney’s Fees pursuant to the Wage Payment & Collection Act: 25,354.51
The parties have not reached agreement as to the following amounts: 1. The amount due to Plaintiff for late payments of her commissions from July 1, 2014 through December 31, 2015. 2. Whether Plaintiff is entitled to receive interest on the amounts paid to her later than allowed by the Wage Payment and Collection Act, I. PLAINTIFF IS ENTITLED TO A PENALTY OF 2% PER MONTH ON LATE PAYMENTS OF THE COMMISSIONS SHE EARNED Plaintiff brought this suit to recover damages for Defendant’s refusal to comply with the provisions of the Illinois Wage Payment and Collection Act. The Court of Appeals has ruled that Defendant failed to comply with that statute. The statute provides: Sec. 14. (a) Any employee not timely paid wages, final compensation, or wage supplements by his or her employer as required by this Act shall be entitled to recover through a claim filed with the Department of Labor or in a civil action, but not both, the amount of any such underpayments and damages of 2% of the amount of any such underpayments for each month following the date of payment during which such underpayments remain unpaid. In a civil action, such employee shall also recover costs and all reasonable attorney's fees. 820 ILCS 115/14 Defendant concedes that it is required to pay a penalty of 2% per month to Plaintiff on late payment of the commissions earned by Plaintiff. However, the parties have not agreed upon the amount of that penalty. Plaintiff has prepared a table showing the late payments of commissions due to her, and the amount of the 2% penalty to be paid to her for each late payment of her commissions. That calculation is attached hereto, showing the date each commission was earned, the date it was actually paid, and the amount of the penalty resulting from that late payment. As discussed below, that table also includes the amount of interest owed on each such late payment.
Il. PLAINTIFF IS ENTITLED TO RECEIVE INTEREST ON THE COMMISSIONS PAID LATE TO PLAINTIFF AND THE COMMISSIONS NOT YET PAID TO HER
The provisions of the Illinois Interest Act are clear: “Creditors shall be allowed to receive at the rate of five (S$) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing...” 815 ILCS 205/2. Defendant required Plaintiff to sign its Sales Incentive Plan, which she did. Thus, the commissions due to Plaintiff were earned pursuant to an “instrument in writing” as defined in the Interest Act. It has long been held that under Illinois law, litigants are entitled to prejudgment interest 1f the damages are liquidated and capable of easy calculation. Stanley Gudyka Sales Co., Inc. v. Lacy Forest Products Co., 915 F.2d 273, 279 (7th Cir. 1990) This rule applies to commissions which have been earned by employees such as Plaintiff. Dallis v. Don Cunningham and Associates, 11 F.3d 713, 718 (7th Cir. 1993) While some cases have denied interest on the basis that the amounts due were not easily determinable, there is no such question here, as the amount of commissions due to Plaintiff are clearly set forth. They were paid to Plaintiff, but not in a timely manner. Thus, she is entitled to interest on those commissions from the date they were due until the date they were actually paid. The way to make a prevailing party whole is to provide prejudgment interest. Medcom Holding v. Baxter Travenol Labs. Inc., 200 F.3d 518, 519 (7th Cir. 2000). Compensation deferred is compensation reduced by the time value of money. In re Milwaukee Cheese Wisconsin, Inc., 112 F.3d 845, 849 (7" Cir, 1997). Prejudgment interest is an element of complete compensation. West Virginia v. United States, 479 U.S. 305, 310 (1987). Defendant has argued that Plaintiff is not entitled to recover interest on the unpaid commissions, because allowing her to recover both the 2% penalty under the Wage Act and
interest would be double recovery. That argument is based upon decisions under the Fair Labor Standards Act, which are not analagous to this case. The penalty under the FLSA doubles the amount of unpaid wages. Some courts have held under the FLSA that adding interest onto an award of a double payment of wages would be double recovery. This is not the case here. The Supreme Court has explained that there is a difference between liquidated damages under the FLSA and other employment statutes in Zrans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed. 2d 523 (1985), The double payment amount due under the FLSA is to be awarded whenever the employer fails to pay the correct amount mandated by that statute. The situation is different in other instances, such as under the Age Discrimination Act, where the double payment penalty is to be awarded only where the employer’s conduct is willful. 469 U.S. at 125. Based upon this Supreme Court decision, numerous courts have held that the award of pre-judgment interest is a different type of damage, which is properly imposed in addition to the award of a penalty or punitive damages. Starceski v. Westinghouse Electric Corp., 54 F.3d 1089 (Third Cir. 1995). In Illinois, interest is a proper award of damages in a case brought under the Wage Act. Elsener v. Brown, 2013 IL App (2d) 120209, 996 N.E.2d 84, 374 Ill.Dec. 637, 84. To hold that a 2% award of interest deprives a wronged employee of a 5% interest award would be anomalous indeed. Such a holding would reduce the amount an employee is entitled to receive when an employer is found to have violated a law specifically designed to protect employees from the kind of misconduct found in this case. The 2% allowed by the Wage Payment and Collection Act is a penalty. Boggs v. Newman-Alton, Inc., 2014 IL App (4th) 130768 423. That amount is above and beyond any other amounts Plaintiff is entitled to receive as a part of her entitlement to proper compensation.
An employee is entitled to an award of interest under virtually any situation where payment of wages are delayed, regardless of whether the cause of action is statutory or for a mere breach of contract. Interest is awarded as a preservation of the economic value of monies due; compensation to prevent the diminution of the value of money resulting from a delay in payment. Old Second National Bank y. Indiana Insurance Co.. 29 N.E. 3d | 168, 2015 IL App (1") 140265, 43. The Interest Act and the Wage Payment Act serve two entirely separate purposes. Plaintiff is entitled to receive both interest to make her whole for the failure of Defendant to pay her in a timely manner, and the penalty imposed by the Wage Act. Indeed, an award of both the 2% penalty imposed by the Wage Act, and prejudgment interest, as well as attorney’s fees, was approved in Boggs v. Newman-Alton, Inc., 2014 I App (4") 130768. This is exactly what should be awarded in this case. Attached as Exhibit “A” is a calculation of the interest and 2% penalty which applies to each late payment made by Defendant to Plaintiff. These are the amounts which should be awarded to Plaintiff here. (i. PLAINTIFF IS ENTITLED TO RECEIVE ADDITIONAL ATTORNEYS FEES Defendant has conceded that Plaintiff is entitled to attorneys fees for Defendant’s failure to comply with the provisions of the Illinois Wage Payment and Collection Act. Since Defendant has continued to refuse to honor its obligations under that act, attempting to deprive Plaintiff of the interest to which she is clearly entitled, she should be awarded an amount to compensate her for the additional fees she has been required to incur to secure payment of the full amount due to her in this case. Attached hereto as Exhibit “B” is a listing of the additional fees Plaintiff has incurred since the return of this case to this Court from the Court of Appeals.
CONCLUSION Based upon the agreement of the parties and the calculation of penalties and interest attached hereto, Plaintiff is entitled to recover from Defendant the following amounts:
Unpaid Commissions $60,235.90 Attorneys Fees through Court of Appeals Decision 25,354.51 Interest on all unpaid amounts 10,172.89 Penalties on all unpaid amounts 54,921.00 Additional Attorneys Fees since Remand 5,880.00 Unpaid Costs Awarded in the Court of Appeals 776.00 Total: $157,340.30
WHEREFORE, Plaintiff Daryl Sutula-Johnson, prays that the Court grant her Judgment in the amount of $ 157,340.30, plus her costs of suit herein.
S/Wayne B. Giampietro Attorney for Plaintiff Of Counsel Poltrock & Giampietro 123 W. Madison St. #1300 Chicago, IL 60602 312-236-0606; Fax: 312-236-9264 Email: wgiampietro@wpglawyers.com ARDC No. 0947776
WR ESAE GE? CAPE PEELS OCOl Lut LU Waly vOonnson Month Commission Due Date Date Paid Days late Interest Penalty July, 2014 33342.4 8/28/2014 11/11/2014 76 347.13 2000.54 20 3161338 9/28/2014 11/11/2014 45 19488 1264.54 2014 79201.18 10/24/2014 11/11/2014 19 206.14 1584.02 2014 18706.41 11/21/2014 4/24/2015 154 217.81 1870.64 2014 17766.36 12/19/2014 4/24/2015 126 138.03 1414.19 2014 22305 1/30/2015 4/24/2015 84 45.83 1338.3 2015 8749.58 2/27/2015 5/22/2015 84 85.1 524.97 2015 2084 3/27/2015 5/22/2015 56 12.28 88.36 28881 4/24/2015 5/22/2015 28 59.34 577.62 11438.92 5/22/2015 8/14/2015 85 133.19 686.34 2015 19280.54 8/6/2015 6/19/2015 57 150.55 771.22 2015 19280.54 7/31/2015 8/14/2015 15 39.62 385.61 2015 36720.27 8/28/2015 11/20/2015 85 427.56 2203.2 2015 1663.03 9/25/2015 11/20/2015 57 = 12.99 66.52 2015 47068.03 10/23/2015 11/20/2015 29 186.98 941.36 2015 23121.82 11/20/2015 8/2/2018 986 3123.03 15722.83 2015 23527.93 12/18/2015 8/2/2018 958 3087.64 15057.88 2015 13586.15 1/29/2015 8/31/2018 916 1704.79 8423.32 10172.89 54921
EXHIBIT A
WAYNE B. GIAMPIETRO LLC 123 W. Madison Street, Suite 1300 Chicago, Illinois 60602 Phone: 312 236 0606
July 31, 2018 Invoice submitted to: Invoice # 2010-6076 Ms. Daryl Johnson 421 Belmont Lane Bartlett, IL 60103
in reference to:Re: Office Depot ————————
Professional Services
ao Hours _ Amo 6/25/2018 WWBG Download Opinion from Court of Appeals and review it; send opinion to 1.25 312 Daryl; begin drafting Bill of Costs: respond to emails from Daryl; call to Daryl; call to Tracy Coenen regarding calculating Daryl's damages 6/28/2018 WBG Finalize and file Bill of Costs on Appeal 0.25 75 7/3/2018 WBG Review file to check for information on damages - what have we calculated 0.25 62 thus far? 7/18/2018 WBG Email to Daryl informing her of status report in District Court 0.10 30. 7/25/2018 WBG Review materials in file regarding Daryl's damages; email to Daryl regarding 1.25 376: info we need to calculate her damages: call from Daryl to discuss eee For professional services rendered 3.10 $855.
EXHIBIT B
WAYNE B. GIAMPIETRO LLC 123 W, Madison Street, Suite 1300 Chicago, Illinois 60602 Phone: 312 236 0606
August 30, 2018 Invoice submitted to: Invoice # 2010-6088 Ms. Daryl Johnson 421 Belmont Lane Bartlett, IL 60103
in reference to:Re: Office Depot
—— Hours __ Amoi 713112018 WBG Call from J. Boquist to discuss next steps in case: email to Darry| informing 2.00 500, her of our telephone conference: review our billings to Daryl to determine the amount owed to her by Defendant for attorneys fees 8/2/2018 WBG Call from Daryl to discuss status report tomorrow - potential payment due to 0.25 62. her, etc 8/3/2018 WBG Appear for status report: call to Daryl to inform her of my discussions with 2.50 750. Office Depot's attorney; research regarding pre-judgment interest: email to Boquist with cases authorizing prejudgment interest in cases like this 8/22/2018 WBG Exchange emails with Daryl regarding calculation of amounts owed to her 0.25 62! 8/27/2018 WBG Download email from Defendant's attorney regarding damages: research 3.00 750.( regarding payment of interest as well as statutory penalty 8/28/2018 WBG Email to Daryl with Defendant's Settlement Offer, and my analysis of their 0.50 125.C reasons for claiming they do not owe interest; conference with Daryl 8/29/2018 WBG Research; letter to counsel for Defendant regarding why Plaintiff is entitled 2.00 500.0 to interest on unpaid funds For professional services rendered 10.50 □□□□□□□□
WAYNE B. GIAMPIETRO LLC 123 W. Madison Street, Suite 1300 Chicago, Illinois 60602 Phone: 312 236 0606
September 12, 2018 Invoice submitted to: Invoice # 2010-6094 Ms. Daryl Johnson 35W348 Elder Avenue St. Charles, IL 60174
reference to:Re: Office Depot
Professional Services Hours __ Amount 9/4/2018 WBG Respond to email from client 0.10 25.00 9/5/2018 WBG Review materials regarding damages sent by client; respond to email from 1.00 250.00 client 9/6/2018 WBG Status Report - Judge Coleman: email to Daryl regarding status report: 4.00 1,000.00 calculate interest and penalties on all amounts due: send to Daryl to review: telephone call from Daryl to discuss 9/7/2018 WBG Draft Motion for Judgment in favor of Dary! 2.50 625.00 9/10/2018 WBG Send 2-9 form to client to sign, at Defendant's request: further drafting of 0.50 125.00 Motion for Judgment 9/11/2018 WBG Finalize Memo regarding Judgment; email to counsel! for Plaintiff with Vv-9 1.00 250.00 from Dary| ee For professional services rendered 9.10 $2,275.00