Lin v. Shi

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

HAN LIN, )

)

Plaintiff, )

)

v. ) No. 20-cv-3186

)

CHINA WOK HILLSBORO, INC. )

d/b/a China Wok, )

JIAN YUN SHI )

a/k/a Jenny Shi, )

d/b/a China Wok, )

XIN HUA LIN )

a/k/a Sin Lin, )

a/k/a Sin H. Lin, )

HONG ZHANG )

a/k/a Nick Zhang, and )

FANG FANG LI )

a/k/a Fangfang Li, )

a/k/a Amy Li, )

a/k/a Elaine Li, )

)

Defendants. )

OPINION

SUE E. MYERSCOUGH, U.S. District Judge.

This cause is before the Court on the Motion for Summary

Judgment (d/e 36) filed by Defendants Jian Yun Shi, Hong Zhang,

and Fang Fang Li. For the reasons set forth below, Defendants’

Motion is GRANTED IN PART and DENIED IN PART.

I. FACTS

Since July 2018, Defendants Hong Zhang and Fang Fang Li

have operated China Wok, a small dine-in, take-out, and delivery

restaurant in Hillsboro, Illinois. Zhang and Li are husband and

wife. Prior to July 2018, China Wok was operated by its owner,

Defendant Jian Yun Shi. After hiring Zhang and Li, Shi no longer

took part in the management of China Wok but continued to own

the restaurant.

On October 20, 2018, Zhang and Li hired Plaintiff Han Lin to

work as a waiter. Plaintiff was 18 years old at the time. The details

of Plaintiff’s initial compensation are disputed, but the parties agree

that most of Plaintiff’s income prior to March 21, 2019 came from

customer tips. On or about July 1, 2019, Plaintiff stopped working

as a waiter and began working as a cook instead. Starting on

March 21, 2019, Zhang and Li agreed to pay Plaintiff a monthly

salary in cash. Plaintiff claims that this agreed monthly salary was

$2500, while Defendants claim that Plaintiff’s monthly salary was

$3000. Plaintiff testified in his deposition that Zhang and Li did not

actually transfer the full amount of Plaintiff’s wages to him on a

regular basis, but instead held on to Plaintiff’s wages and disbursed

money to Plaintiff when Plaintiff requested it. Defendants Zhang

and Li have neither confirmed nor denied that they maintained

control of Plaintiff’s money during his employment at China Wok.

On January 8, 2020, Plaintiff gave Zhang and Li notice that

Plaintiff would be leaving China Wok. The next day, Plaintiff quit.

In his deposition, Plaintiff stated that he quit because he had

secured a job at his older brother’s restaurant in Virginia. Plaintiff

also testified that he initially offered to continue working at China

Wok for one week after January 8 but left on the 9th instead

because of an argument in which Zhang and Li said that they

would not give him the money that they had been holding for him if

he left. Plaintiff claims that, when he left China Wok, Zhang and Li

owed him $6500 in unpaid wages, which Plaintiff never received. Li

and Zhang deny that Plaintiff was owed any wages upon his

resignation.

II. PROCEDURAL BACKGROUND

On July 24, 2020, Plaintiff filed a Complaint (d/e 1) in this

Court. On September 19, 2020, Plaintiff filed the pending five-

count Amended Complaint (d/e 5). The Amended Complaint names

Zhang, Li, and Shi as Defendants, as well as “China Wok Hillsboro

Inc. d/b/a China Wok” and “Xin Hua Lin.” The Amended

Complaint states that Defendant Lin “is the President of China Wok

Hillsboro Inc.” and that China Wok Hillsboro Inc. was at one time “a

domestic business corporation organized under the laws of the

State of Illinois.” D/e 5, ¶¶ 10, 18. However, the parties now agree

that China Wok “is not a business entity but a d/b/a or trade

name.” See d/e 38, p. 3. Defendant Lin has not appeared in this

matter and has not answered or otherwise responded to Plaintiff’s

Amended Complaint.

Count I of the Amended Complaint alleges that Defendants

failed to pay Plaintiff the federally mandated minimum wage for

some or all of the hours Plaintiff worked at China Wok, in violation

of the minimum wage provisions of the Fair Labor Standards Act

(“FLSA”), 29 U.S.C. § 201 et seq. See 29 U.S.C. § 206. Count II

alleges that Defendants failed to pay Plaintiff the state-mandated

minimum wage in violation of the Illinois Minimum Wage Law, 820

ILCS § 105/1 (“IMWL”). Count III alleges that Defendants violated

the overtime provision of the FLSA, 29 U.S.C. § 207(a), by failing to

pay Plaintiff overtime compensation at the statutorily mandated

time-and-a-half rate. Count IV alleges that the same failure to pay

overtime wages violated the overtime pay provision of the IMWL.

See 820 ILCS 105/4(a). Count V alleges that Defendants withheld

earned wages from Plaintiff after Plaintiff left his job, in violation of

the Illinois Wage Payment and Collection Act (“IWPCA”), 820 ILCS

115/1.

On December 20, 2021, Defendants Shi, Zhang, and Li filed

the pending Motion for Summary Judgment (d/e 36). Defendants

argue that Shi was an “absentee owner” of China Wok while Plaintiff

worked there and is therefore not subject to individual liability as

an employer under the FLSA. Defendants also argue that no

Defendant is liable under the FLSA because Plaintiff cannot show

that Plaintiff is entitled to FLSA coverage. Additionally, Defendants

argue that they are entitled to summary judgment on Plaintiff’s

IMWL claims, Counts II and IV, because the IMWL does not apply to

businesses that, like China Wok, employ fewer than four employees

exclusive of immediate family members of the employer. Finally,

Defendants argue that Plaintiff has not properly alleged or proven

the elements of an IWPCA claim.

On January 10, 2022, Plaintiff filed a Response (d/e 38) to

Defendants’ Motion for Summary Judgment. Plaintiff does not

oppose Defendants’ request for summary judgment on the IWML

claims or on the FLSA claims against Shi. However, Plaintiff

opposes Defendants’ request for summary judgment on the FLSA

claims against Zhang and Li and on the IWPCA claim. Plaintiff’s

Response includes a motion to strike portions of the affidavits

submitted by Shi, Zhang, and Li and portions of the statement of

undisputed material facts included in Defendants’ summary

judgment motion. Defendants Shi, Zhang, and Li filed a Reply

(d/e 39) to Plaintiff’s Response on January 24, 2022.

III. LEGAL STANDARD

Summary judgment is proper if the movant shows that no

genuine dispute exists as to any material fact and that the movant

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

The movant bears the initial responsibility of informing the Court of

the basis for the motion and identifying the evidence the movant

believes demonstrates the absence of any genuine dispute of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A

genuine dispute of material fact exists if a reasonable trier of fact

could find in favor of the nonmoving party. Marnocha v. St. Vincent

Hosp. & Health Care Ctr., Inc., 986 F.3d 711, 718 (7th Cir. 2021).

When ruling on a motion for summary judgment, the Court must

construe all facts in the light most favorable to the non-moving

party and draw all reasonable inferences in that party’s favor. King

v. Hendricks Cty. Commissioners, 954 F.3d 981, 984 (7th Cir.

2020).

The moving party bears the burden of establishing that there

is no genuine dispute as to any material fact. See Celotex, 477 U.S.

at 323. After the moving party does so, the non-moving party must

then go beyond the pleadings and “set forth specific facts showing

that there is a genuine issue for trial.” Anderson v. Liberty Lobby,

Inc., 477 U.S. at 255 (cleaned up). Summary judgment is

warranted when the moving party carries its initial burden, and the

non-moving party cannot establish an essential element of its case

on which it will bear the burden of proof at trial. Kidwell v.

Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012).

IV. ANALYSIS

A. Defendants Are Entitled to Summary Judgment on

Plaintiff’s Illinois Minimum Wage Law Claims, and Shi

Jian Yun Is Entitled to Summary Judgment on Plaintiff’s

FLSA Claims.

Plaintiff concedes that Defendant Shi cannot be held

individually liable for FLSA violations because Defendant Shi Jian

Yun was an “absentee owner” with no operational control over

China Wok. See Lamonica v. Safe Hurricane Shutters, Inc., 711

F.3d 1299, 1314 (11th Cir. 2013) (recognizing that individual

liability under the FLSA requires control over the company that is

“substantial and related to the company's FLSA obligations”).

Accordingly, Defendants’ unopposed motion for summary judgment

in favor of Defendant Shi Jian Yun on Counts I and III of Plaintiff’s

Amended Complaint is GRANTED. Plaintiff shall recover nothing

from Defendant Shi Jian Yun on either Count I or Count III.

Plaintiff also concedes that the Illinois Minimum Wage Law,

820 ILCS 105/1 et seq., does not apply to Defendants because

China Wok employed fewer than four employees exclusive of the

immediate family of Defendants Zhang and Li. See 820 ILCS

105/3(d) (stating that any individual employed by a company with

fewer than four employees, exclusive of the employer’s immediate

family, is not an “Employee” entitled to the protections of the Illinois

Minimum Wage Law). Accordingly, Defendants’ motion for

summary judgment on Counts II and IV of Plaintiff’s Amended

Complaint is GRANTED. Plaintiff shall recover nothing on either

Count II or Count IV.

Defendants have moved for summary judgment “as to any

purported class claims” alleged by Plaintiff. D/e 36, pp. 22–23.

However, Plaintiff has not alleged any class claims and has not

moved for class certification. Accordingly, Defendant’s motion for

summary judgment on Plaintiff’s “class claims” is DENIED AS

MOOT.

Plaintiff’s motion to strike portions of the affidavits submitted

by Defendants Shi, Zhang, and Li and portions of Defendants’

statement of facts is DENIED. Plaintiff argues that Defendants’

testimony regarding the interstate commercial activities and

communications of China Wok employees are “conclusory and bare

assertions.” D/e 38, p. 24. However, the challenged statements are

based on Defendants’ personal knowledge and memory of the

operations of China Wok. While some of the challenged statements

arguably involve legal conclusions, such as the claim that China

Wok employees did not “engage in the production of goods for

commerce,” id., these statements can also be interpreted as

awkwardly phrased factual assertions about the kinds of activities

that Defendants observed employees performing. While the

accuracy of Defendants’ self-serving recollections can be

questioned, the Court in its discretion declines to strike the

challenged statements.

B. Defendants Zhang and Li Are Not Entitled to Summary

Judgment on Plaintiff’s FLSA Claims Because There Is a

Genuine Factual Dispute Regarding China Wok’s Annual

Revenue.

The FLSA entitles employees who are either “engaged in

commerce or in the production of goods for commerce” (individual

coverage) or “employed in an enterprise engaged in commerce or in

the production of goods for commerce” (enterprise coverage) to an

hourly minimum wage and to time-and-a-half overtime pay. 29

U.S.C. § 207. Plaintiff argues that he qualifies for FLSA coverage

under both the individual coverage and enterprise coverage

provisions. Defendants argue that neither individual nor enterprise

coverage applies.

1. Plaintiff Was Not Individually Engaged in Commerce and

Did Not Produce Goods for Commerce.

To establish individual FLSA coverage, Plaintiff must

demonstrate that he was either “engaged in commerce” or “engaged

in the production of goods for commerce” when he worked at China

Wok. 29 U.S.C. § 207. The FLSA “regulate[s] only activities

constituting interstate commerce, not activities merely affecting

commerce.” Joles v. Johnson Cnty. Youth Serv. Bureau, Inc., 885

F. Supp. 1169, 1176 (S.D. Ind. 1995). An employee is engaged in

commerce individually only if his work is “so directly and vitally

related to the functioning of an instrumentality or facility of

interstate commerce as to be, in practical effect, a part of it, rather

than isolated local activity.” Mitchell v. C.W. Vollmer & Co., 349

U.S. 427, 429 (1955) (citations omitted). Here, Plaintiff was a waiter

and cook who prepared food and served it to customers in a local

restaurant. The parties have stipulated that the ingredients used

by Plaintiff originated outside of Illinois, but Plaintiff has not alleged

that the food he prepared traveled in interstate commerce after he

prepared it. Therefore, Plaintiff did not produce goods for interstate

commerce.

Several district courts have held that cooks engaged in

preparing food at a local restaurant are not entitled to individual

FLSA coverage, even if their ingredients have traveled in interstate

commerce or if a few of their customers are traveling interstate. See

Shoemaker v. Lake Arbutus Pavilion, LLC, 115 F. Supp. 3d 974,

979 (W.D. Wis. 2015) (collecting cases); Yan v. Gen. Pot, Inc., 78 F.

Supp. 3d 997, 1003 (N.D. Cal. 2015); T Si v. CSM Inv. Corp., No. C-

06-7611, 2007 WL 1518350, at *3 (N.D. Cal. May 22, 2007) (“The

occasional service of food to people traveling interstate and the

handling of food that was moved interstate is insufficient to

establish that the individual employee is engaged in commerce.”);

Monelus v. Tocodrian, Inc., 598 F. Supp. 2d 1312, 1312–15 (S.D.

Fla. 2008). Plaintiff makes no attempt to distinguish these cases

and relies solely on the parties’ stipulation that the food prepared

by Plaintiff originated in states other than Illinois. Accordingly, the

Court finds that Plaintiff is not entitled to individual FLSA coverage.

2. Plaintiff Has Raised a Genuine Issue of Material Fact

with Respect to Enterprise FLSA Coverage.

Plaintiff is entitled to “enterprise” FLSA coverage if he can

establish that China Wok was an “enterprise engaged in interstate

commerce.” 29 U.S.C. § 207. The FLSA defines “enterprise engaged

in interstate commerce” to include businesses that: (1) “ha[ve]

employees handling, selling, or otherwise working on goods or

materials that have been moved in or produced for commerce by

any person”; and (2) have an “annual gross volume of sales made or

business done” of at least $500,000. Id. § 203(s)(1)(A). Here,

Defendants argue that China Wok’s annual gross revenues during

Plaintiff’s employment were less than $500,000. Defendants do not

deny that China Wok had employees who handled goods moved in

interstate commerce.

Defendants have submitted the individual tax returns

belonging to Defendant Shi, who was then the owner of China Wok,

for the years 2018, 2019, and 2020. Each of these tax returns

includes a “Schedule C” form that lists the gross receipts or sales

for China Wok during the year in question. For 2018, the Schedule

C lists $226,485 in gross receipts. D/e 36, exh. 1, p. 13. For 2019,

the listed figure is $190,902. Id., p. 34. For 2020, the listed figure

is $72,154. Id., p. 60. All three of these figures are below

$500,000, so if Ms. Shi’s tax returns are taken at face value Plaintiff

cannot establish enterprise coverage.

Unfortunately, Ms. Shi’s tax returns are clearly fraudulent.

The same Schedule C attachments that list annual gross receipt

figures of less than $500,000 indicate that China Wok paid no

wages to any employee during 2018, 2019, and 2020. This claim is

contradicted by Defendants’ assertion that Plaintiff was employed

by China Wok between October 2018 and January 2019 at a base

salary of $300 per month plus tips, and between March 2019 and

January 2020 at a monthly salary of $3,000. See d/e 39, p. 2.

Defendants admit that “Defendants’ tax returns consistently state

that China Wok paid no wages to any employees” and, by way of

explanation, state that “Plaintiff was paid in cash.” Id., p. 8.

Defendants have not cited to any provision in the Internal Revenue

Code authorizing employers who pay their employees in cash to

knowingly file falsified tax returns.

Plaintiff has submitted an affidavit in which he testifies that,

while he was a waiter and cook, China Wok served approximately

120 dine-in customers and approximately 45 takeout customers

daily, resulting in approximately $1,875.00 in gross daily revenue

and at least $585,000 in gross annual revenue. D/e 38, exh. 1, pp.

2–3. Defendants have objected to Plaintiff’s affidavit as

inadmissible and non-evidentiary. See d/e 48.

Rule 56(c)(4) permits a party to submit an affidavit to oppose a

motion for summary judgment only if the affidavit “(1) attests to

facts of which the affiant has personal knowledge; (2) set[s] out

facts that would be admissible in evidence; and (3) show[s] that the

affiant or declarant is competent to testify on the matters stated.”

James v. Hale, 959 F.3d 307, 315 (7th Cir. 2020) (cleaned up)

(alterations in original). Plaintiff’s affidavit satisfies all three of

these requirements. The affidavit contains Plaintiff’s estimates of

the number of dine-in and take-out customers that China Wok had

over the course of an average day, the average dollar amount of

revenue collected from each customer by China Wok, the

percentage of customers who paid with cash, and China Wok’s

practice with respect to issuing receipts to customers who paid with

cash. Plaintiff testifies only to what he saw with his own eyes—his

testimony is a summary of his first-hand sensory observations. See

United States v. Conn, 297 F.3d 548, 554 (7th Cir. 2002) (“Lay

opinion testimony most often takes the form of a summary of first-

hand sensory observations.”). Plaintiff’s testimony does not include

any specialized interpretation of his observations that would require

specialized knowledge of accounting. The only analysis included in

Plaintiff’s testimony is basic addition and multiplication, both of

which are well within the capabilities of a layperson.

Defendants argue that only an “owner or officer or manager or

accountant with personal knowledge of a business and business

documents” can offer lay opinion testimony regarding “matters or

things of value, such as financial, accounting, or appraisal issues.”

D/e 48, p. 15. This theory is based on a misreading of the advisory

committee notes to Rule 701 of the Federal Rules of Evidence. The

advisory committee noted that “most courts have permitted the

owner or officer of a business” to offer lay opinion testimony as to

the “value or projected profits” of a business. Fed. R. Evid. 701,

committee notes to 2000 amendments. The fact that one class of

employee is permitted to offer certain testimony does not mean that

all other classes of employee are prohibited from so testifying.

Moreover, Plaintiff is not testifying to the “value or projected profits”

of China Wok, or to any other matter that would require intimate

familiarity with the restaurant’s business records. Instead, Plaintiff

is testifying to the number of customers he served in an average

day, and the amount that the average customer paid for their order.

Neither the advisory committee notes nor any other authority cited

by Defendants suggests a bright-line rule prohibiting employees of a

small business from testifying to the number of customers served

by the business or the prices charged by the business.

Additionally, courts in other districts have accepted the

testimony of employees like Plaintiff regarding estimates of the

business income of a former employer. See Jia Hu Qian v. Siew

Foong Hui, 11-CV-5584, 2013 WL 3009389, at *3 (S.D.N.Y. June

14, 2013) (“Plaintiff's affidavit makes it clear that he was in a

position to obtain specific knowledge about the restaurant's sales,

including the proportion of sales paid with cash and those paid by a

credit card.”); Monterossa v. Martinez Rest. Corp., No. 11-CV-3689,

2012 WL 3890212, at *4 (S.D.N.Y. Sept. 7, 2012) (finding that

plaintiffs’ sworn testimony estimating the gross daily sales of former

employer, a small restaurant, created an issue of fact as to whether

defendant’s revenue fell below FLSA enterprise liability threshold).

Defendants also argue that Plaintiff’s affidavit is hearsay

because his testimony is a summary of China Wok’s business

records. The Court disagrees. Plaintiff is not testifying to the

content of China Wok’s nonexistent records but to the number and

cost of the food orders that he personally took and filled as a waiter

and cook. For all these reasons, Defendants’ objections to the

admissibility of Plaintiff’s affidavit are OVERRULED.

Even without Plaintiff’s affidavit, however, material issues of

fact would still remain regarding China Wok’s annual revenue. At

summary judgment, courts construe all facts in the light most

favorable to the non-moving party and draw all reasonable

inferences in that party’s favor. One reasonable explanation for the

discrepancy between the payroll that Ms. Shi reported to the IRS

and China Wok’s actual payroll is that China Wok did a substantial

amount of business in cash, failed to report most of this cash

income to the IRS, and then used some of the unreported cash

revenue to pay employees. See, e.g., Zavala-Alvarez v. Darbar

Mgmt., Inc., 338 F.R.D. 384, 387 (N.D. Ill. 2021) (finding that

defendants filed false tax returns which underreported cash

revenue and wages and then “compounded the deception” by

relying on the false information in the tax returns to support a

motion for summary judgment in an FLSA suit); Qian, 2013 WL

3009389, at *3 (S.D.N.Y. June 14, 2013) (finding that plaintiff’s

affidavit alleging that defendants were “purposefully under

reporting [their restaurant’s] gross sales in order to ‘reduce their tax

burden’ and consequently avoid FLSA coverage” created a material

factual dispute preventing summary judgment).

On summary judgment, Defendants bear the burden of

establishing the nonexistence of any material factual dispute.

Defendants’ admittedly false tax returns, which are unsigned and

unaccompanied by a tax preparer’s statement or affidavit, do not

prove that China Wok’s annual revenue falls below the FLSA

threshold. See Monterossa, 2012 WL 3890212, at *4 (finding a

material dispute of fact where unsigned tax returns were

inconsistent with restaurant’s business records); Qian, 2013 WL

3009389, at *3 (“[T]ax returns are not dispositive and the veracity of

those documents can be questioned by a Plaintiff.”); Junmin Shen

v. No. One Fresco Tortillas, Inc., 16-CV-2015, 2018 WL 6712771, at

*7 (S.D.N.Y. Nov. 26, 2018) (finding that restaurant qualified for

enterprise coverage under FLSA where tax returns showing less

than $500,000 in income were inconsistent with other evidence,

and where plaintiffs’ testimony as to the number and average cost

of daily food orders was deemed reliable).

Another indication that Defendants may be understating

China Wok’s annual revenue comes from the restaurant’s reported

net profits. According to the returns, China Wok’s net profits before

taxes was $32,285 in 2018, $22,515 in 2019, and $15,238 in 2020.

See d/e 36, exh. 1, pp. 13, 34, 60. Assuming that China Wok

employed a cook throughout this time period and paid him $3,000

per month, and assuming that Defendants Li and Zhang were also

paid for their work, China Wok would have operated at a significant

loss for each of the three years in question if the revenue figures

stated in the returns are accurate. It is certainly possible for a

restaurant to operate at a significant loss for a period of three years.

However, given the magnitude of the putative loss and the presence

of known false statements elsewhere in the returns, a reasonable

jury could conclude that the returns dramatically understate China

Wok’s annual revenue without relying on Plaintiff’s testimony.

The only other evidence of China Wok’s annual revenue

submitted by Defendants consists of China Wok’s credit card

processing statements from October 2018 to January 2020. See

d/e 43, 44. The only year for which 12 months of statements have

been provided is 2019, and the statements, if taken at face value,

show that China Wok took in $120,547.07 in revenue from credit

card purchases, before processing fees, in that year. Id. In the

absence of any reliable evidence regarding the amount of cash

revenue China Wok generated, however, the credit card statements

do not establish that China Wok’s annual revenue was below

$500,000 in any year. Defendants claim that Defendant Zhang

made “a brief written notation or record” of the monthly cash totals

received from customers, which he presented to China Wok’s

accountant on a monthly basis. However, Defendants admit that

these records of cash revenue have not been preserved. Defendants

have not provided an affidavit from the accountant who supposedly

handled the temporary cash receipt records.

For all these reasons, Defendants’ motion for summary

judgment on Plaintiff’s FLSA claims is DENIED.

C. Defendants Are Not Entitled to Summary Judgment on

Plaintiff’s IWPCA Claims Because a Disputed Issue of

Material Fact Remains Regarding Whether Plaintiff Was

Properly Compensated.

The IWPCA was enacted to “provide employees with a cause of

action for the timely and complete payment of earned wages or final

compensation, without retaliation from employers.” Byung Moo

Soh v. Target Mktg. Sys., Inc., 817 N.E.2d 1105, 1107 (Ill. App.

2004) (cleaned up). To succeed on an IWPCA claim, a plaintiff must

show that: “(1) he had an employment agreement with the employer

that required the payment of wages or final compensation and (2)

that the defendants were employers under the [IWPCA].” Watts v.

ADDO Mgmt., L.L.C., 97 N.E.3d 75, 80 (Ill. App. 2018) (cleaned up).

Here, Defendants argue that Plaintiff has not pled or established

that Defendants were employers under the IWPCA. Defendants also

argue that Plaintiff has not pled or established the existence of an

employment agreement in which Defendants agreed to compensate

Plaintiff “for the particular work [Plaintiff] allegedly performed.” D/e

36, p. 22.

Plaintiff’s Amended Complaint alleges that “Plaintiff was not

an independent contractor, rather was an employee of the

Defendants by oral IWPCA Agreement and/or written contract,” that

“Plaintiff worked for and was employed by Defendants,” and that

“Defendants are ‘employers’ under the terms of the IWPCA section

2.” D/e 5, ¶¶ 88, 92, 95. In their Answers to Plaintiff’s Amended

Complaint, Zhang and Li both admit the truth of each of these

allegations. See d/e 29, ¶¶ 88, 92, 95; d/e 30, ¶¶ 88, 92, 95.

Defendants have also admitted that they compensated Plaintiff by

paying him $3,000 per month for the work he performed. These

admissions foreclose each of Defendants’ IWPCA summary

judgment arguments. To the extent that Zhang and Li argue that

they compensated Plaintiff for something other than his work as a

waiter and cook, that argument has been forfeited. An argument

presented without any supporting authority or reasoning is “merely

an assertion which does not sufficiently raise the issue to merit the

court's consideration.” Alberici Constr., Inc. v. Wrigley, No.

08-CV-2164, 2009 WL 10685153, at *3 (C.D. Ill. Feb. 12, 2009).

While an employee bears the burden of proof on an IWPCA

claim, Baudin v. Courtesy Litho Arts, Inc., 24 F. Supp. 2d 887, 894

(N.D. Ill. 1998), Defendants, as the moving parties at summary

judgment, bear “the initial burden of demonstrating that [they are]

entitled to judgment as a matter of law.” Cabala v. Target, No. 06-

CV-4030, 2007 WL 9814458, at *9 (N.D. Ill. Aug. 1, 2007) (denying

motion for summary judgment on IWPCA claim where defendant

presented no “explanation of why judgment is warranted”). Plaintiff

has testified that he and Defendants Zhang and Li had an

agreement under which Defendants Zhang and Li were obligated to

pay Plaintiff $2500 in wages each month. D/e 38, p. 14. Plaintiff

has also testified that, when Plaintiff resigned, Defendants refused

to pay him $6,500 in earned wages. Id. Defendants deny that they

failed to pay Plaintiff wages owed. Because Defendants kept no

records of their cash payments to employees, no hard evidence

proving or disproving Plaintiff’s assertions has been produced.

Therefore, a material dispute of fact exists regarding whether

Defendants unlawfully withheld wages from Plaintiff.

V. CONCLUSION

For the reasons stated above, Defendants’ Motion for

Summary Judgment (d/e 36) is GRANTED IN PART and DENIED IN

PART. Summary judgment is granted against Plaintiff and in favor

of Defendants as to Counts II and IV of Plaintiff’s Amended

Complaint (d/e 5) and as to Counts I and III of the Amended

Complaint with respect to Defendant Shi only. Counts I and III of

Plaintiff’s Amended Complaint remain pending against Defendants

Zhang, Li, Lin, and China Wok Hillsboro, Inc., and Count V remains

pending against all Defendants. Plaintiff’s motion to strike, which

was filed as part of Plaintiff’s Response to Defendant’s Motion for

Summary Judgment, is DENIED. The final pretrial conference and

jury trial in this case remain as previously scheduled.

ENTERED: August 29, 2022

FOR THE COURT:

/s/Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE