Sutula-Johnson
v.
Office Depot, Inc.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISIONSep 12, 2018
No. 2015 C 2378 (N.D. Ill. Sep. 12, 2018)

No. 2015 C 2378

09-12-2018

DARYL SUTULA-JOHNSON, Plaintiff, v. OFFICE DEPOT, INC., a Delaware corporation, Defendant.

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


Judge Sharon Johnson Coleman
Magistrate Judge Sidney I. Schenkier

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 other 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.

II. 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 (5) 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 if the damages are liquidated and capable of easy calculation. Stanley Gudyka Sales Co., Inc. v. Lucy 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 lime value of money. In re Milwaukee Cheese Wisconsin, Inc., 112 F.3d 845, 849 (7th 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 Trans 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 ¶23. 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 v. Indiana Insurance Co., 29 N.E. 3d 1168, 2015 IL App (1st) 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 Il App (4th) 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.

III. 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

EXHIBIT A


Penalties and Interest Due to Daryl Johnson

10172.89


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

August, 20

3161338

9/28/2014

11/11/2014

45

194 88

1264.54

Sept, 2014

79201.18

10/24/2014

11/11/2014

19

206.14

1584.02

Oct, 2014

18706.41

11/21/2014

4/24/2015

154

217.81

1870.64

Nov. 2014

17766.36

12/19/2014

4/24/2015

126

138.03

1414.19

Dec. 2014

22305

1/30/2015

4/24/2015

84

45.83

1338.3

Jan, 2015

8749.58

2/27/2015

5/22/2015

84

85.1

524.97

Feb. 2015

2084

3/27/2015

5/22/2015

56

12.28

88.36

March,2015

28881

4/24/2015

5/22/2015

28

59.34

577.62

April,2015

11438.92

5/22/2015

8/14/2015

85

133.19

686.34

May, 2015

19280.54

8/6/2015

6/19/2015

57

150.55

771.22

June, 2015

19280.54

7/31/2015

8/14/2015

15

39.62

385.61

July, 2015

36720.27

8/28/2015

11/20/2015

85

427.56

2203.2

Aug, 2015

1663.03

9/25/2015

11/20/2015

57

12.99

66.52

Sept. 2015

47068.03

10/23/2015

11/20/2015

29

186.98

941.36

Oct, 2015

23121.82

11/20/2015

8/2/2018

986

3123.03

15722.83

Nov. 2015

23527.93

12/18/2015

8/2/2018

958

3087.64

15057.88

Dec, 2015

13586.15

1/29/2015

8/31/2018

916

1704.79

8423.32

54921

EXHIBIT B

Image materials not available for display.