# Lee v. Hanjin Intermodal America, Inc.

> District Court, N.D. Illinois · February 12, 2021

URL: https://www.frixlaw.com/law-library/cases/10144165

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** February 12, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10144165

## How later opinions describe it (automated extraction)

- holding that an employee’s declaration estimating that he performed an average of “one to five hours of uncompensated overtime each week,” even if not “precise,” provided sufficient proof of damages
- noting that an employee could reconstruct unreported time “from memory, inferred from the particulars of the jobs the [employee] did, or estimated in other ways”

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

KWANG JUN LEE,

Plaintiff,

v. Case No. 16-cv-08610

HANJIN INTERMODAL AMERICA, Judge Martha M. Pacold
INC., d/b/a HANJIN EXPRESS,

Defendant.

MEMORANDUM OPINION AND ORDER
This case involves a dispute about a package delivery driver’s overtime
wages. Plaintiff Kwang Jun Lee sued his employer, Hanjin Intermodal America,
Inc., d/b/a Hanjin Express (Hanjin) alleging violations of the Fair Labor Standards
Act (FLSA) and Illinois Minimum Wage Law (IMWL). Hanjin now moves for
summary judgment on both claims. For the reasons stated below, Hanjin’s motion
[60] is denied.
Background
In deciding Hanjin’s motion for summary judgment, the court views the
evidence in the light most favorable to Lee. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). The following facts are undisputed unless
otherwise noted. Hanjin is a Korea-based shipping company that does business in
the United States, including Chicago. Hanjin’s Statement of Facts, [61] ¶ 1.1
Between June 2011 and December 2014, Hanjin’s Chicago offices were located at
the Korean Air terminal of O’Hare Airport. [61] ¶ 3. Hanjin relocated its Chicago
Freight Forwarding and Express divisions to a warehouse in Wood Dale, Illinois in
December 2014, and relocated them again to another warehouse in Mount Prospect,
Illinois in February 2016. [61] ¶¶ 4, 5.
Lee started working for Hanjin in Chicago as a Courier Driver for the Hanjin
Express division in October 2011. [61] ¶ 6. While he worked there, Lee was one of

1 Bracketed numbers refer to docket entries and are followed by page or paragraph
numbers. Page numbers refer to the CM/ECF page number.
two employees at the Chicago location. [61] ¶ 7. The other employee, Ha Rim Choi,
handled the day-to-day operations of Hanjin Express in Chicago. [61] ¶ 8. Between
2011 and December 2013, Lee and Choi reported to Jin Sung Park, the Chicago
Branch Manager. [61] ¶ 10. In December 2013, Kevin Lee replaced Park in that
role. [61] ¶ 11.
The parties agree on Lee’s duties and an outline of his typical workday.
Lee picked up packages from Hanjin’s customers, delivered them to Hanjin’s
warehouse, and readied them for shipment to Korea. During the first five years of
his employment, Lee began his day by driving a company car from his home to his
first pickup location. [61] ¶¶ 13–14, 16. He picked up packages during the morning
and afternoon. When he returned and unloaded the packages at the warehouse,
Choi scanned them and emailed a receipt to Hanjin’s headquarters. After that, Lee
readied the packages for shipment to Korea. Once Hanjin relocated from O’Hare to
the Wood Dale warehouse, Lee was additionally responsible for transporting the
items from Wood Dale to O’Hare for shipment at the end of each day. [61] ¶¶ 19–
20, 22.
Lee worked Monday through Friday, but on Wednesday Hanjin did not run
its express services and therefore Lee did not have to prepare and deliver a
shipment to the airport. [61] ¶¶ 26–27; Lee’s Response to Hanjin’s Statement of
Facts, [69] ¶ 27.
In July or August of 2016, Hanjin purchased a new company vehicle, and Lee
was required to drop it off at Hanjin’s offices when he finished working.
Accordingly, he then started his day by driving to the offices to retrieve the
company car, rather than driving directly from his home to his first pickup location.
[61] ¶¶ 24–25; [69] ¶ 24.
In September 2016, Lee brought this action to recover allegedly unpaid
overtime wages under the FLSA and the IMWL beginning December 1, 2011. [1].
Hanjin seeks summary judgment on Lee’s claims in their entirety, arguing
that Lee has not proved either that he worked unpaid overtime (at all or with
sufficient specificity) or that Hanjin knew about any such work.
Discussion
Summary judgment is proper where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). A genuine dispute as to any material fact exists if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive law controls which
facts are material. Id.
The party seeking summary judgment has the burden of establishing that
there is no genuine dispute as to any material fact. See Celotex, 477 U.S. at 323.
After a “properly supported motion for summary judgment is made, the adverse
party must set forth specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 250 (quotation and footnote omitted). Construing the
evidence and facts supported by the record in favor of the nonmoving party, the
court gives the nonmoving party “the benefit of reasonable inferences from the
evidence, but not speculative inferences in [its] favor.” White v. City of Chi., 829
F.3d 837, 841 (7th Cir. 2016) (internal citations omitted). “The controlling question
is whether a reasonable trier of fact could find in favor of the non-moving party on
the evidence submitted in support of and opposition to the motion for summary
judgment.” Id. (citation omitted).
I. Uncompensated Overtime
Lee claims that he was not properly paid for overtime work in violation of the
FLSA and the IMWL. Hanjin first argues that Lee cannot show that he worked
uncompensated overtime at all or with sufficient specificity. The parties agree that
Lee performed some overtime work, but Hanjin argues that Lee requested payment
and was paid for the overtime.
The FLSA provides as relevant: “no employer shall employ any of his
employees . . . for a workweek longer than forty hours unless such employee
receives compensation for his employment in excess of the hours above specified at a
rate not less than one and one-half times the regular rate at which he is employed.”
29 U.S.C. § 207(a)(1). Thus, the FLSA requires an employer to pay overtime “at a
rate not less than one and one-half times” the employee’s regular hourly wage for
every hour worked in excess of forty in a workweek. Id.; see DeKeyser v.
Thyssenkrupp Waupaca, Inc., 735 F.3d 568, 570 (7th Cir. 2013); Blanchar v.
Standard Ins. Co., 736 F.3d 753, 756 (7th Cir. 2013). The IMWL requires the same.
820 ILCS 105/4a; Garcia v. Draw Enterprises III, LLC, No. 17-cv-4477, 2018 WL
6045206, at *4 (N.D. Ill. Nov. 19, 2018) (citing cases). Since neither party argues
that the analysis for the IMWL overtime claim diverges from the FLSA standard,
the court evaluates the claims together.
“[A]n employee who brings suit pursuant to FLSA ‘has the burden of proving
that he performed work for which he was not properly compensated.’” Melton v.
Tippecanoe Cty., 838 F.3d 814, 818 (7th Cir. 2016) (quoting Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680, 686–87 (1946), superseded on other grounds by Portal-to-
Portal Act of 1947, 29 U.S.C. §§ 251–62).
“Where the employee alleges that his employer kept inaccurate records, he
‘has carried out his burden if he proves that he has in fact performed work for which
he was improperly compensated and if he produces sufficient evidence to show the
amount and extent of that work as a matter of just and reasonable inference.’”
Melton, 838 F.3d at 818 (quoting Anderson, 328 U.S. at 687); see also Brown v.
Family Dollar Stores of Ind., LP, 534 F.3d 593, 595 (7th Cir. 2008); Turner v. The
Saloon, Ltd., 595 F.3d 679, 691 (7th Cir. 2010); Lee v. BK Schaumburg Inc., No. 18-
cv-3593, 2020 WL 3577994, at *5 (N.D. Ill. July 1, 2020); Garcia, 2018 WL 6045206,
at *6; Meadows v. NCR Corp., No. 16-cv-6221, 2017 WL 5192009, at *9 (N.D. Ill.
Nov. 9, 2017). “At that point, ‘[t]he burden then shifts to the employer to come
forward with evidence of the precise amount of work performed or with evidence to
negative the reasonableness of the inference to be drawn from the employee’s
evidence.’” Melton, 838 F.3d at 818 (quoting Anderson, 328 U.S. at 687–88); see also
Brown, 534 F.3d at 595. “If the employer fails to meet that burden, a court may
award damages even though they are approximations.” Brown, 534 F.3d at 595.
A. Payroll Records
As mentioned, Lee must first prove (or, at the summary judgment stage,
identify a genuine issue of material fact) that he performed overtime work for which
he was not properly compensated. The parties agree that Lee performed some
overtime work, but Hanjin argues that Lee requested payment and was paid for the
overtime. Lee claims that Hanjin’s payroll records inaccurately recorded the hours
he worked because his supervisors discouraged him from submitting requests for
overtime.
“The FLSA makes clear that employers, not employees, bear the ultimate
responsibility for ensuring that employee time sheets are an accurate record of all
hours worked by employees. . . . Thus, if plaintiffs have evidence sufficient to
support a finding that they were told not to record all their overtime, [defendant]
cannot hide behind a policy of having employees keep their own time to avoid
compensating the employees for all overtime hours worked, including unrecorded
hours.” Skelton v. Am. Intercontinental Univ. Online, 382 F. Supp. 2d 1068, 1071–
72 (N.D. Ill. 2005) (citations omitted); see also Blakes v. Illinois Bell Tel. Co.,
75 F. Supp. 3d 792, 814 (N.D. Ill. 2014) (if plaintiff’s supervisors “discouraged him
from accurately recording his overtime, such actions indicate that [defendant’s]
records cannot be trusted, at least with regard to [plaintiff]”) (citing Allen v. Bd. of
Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1316 (11th Cir. 2007)). Therefore, the
relevant question at this step of the analysis is whether a reasonable factfinder
could find that Hanjin discouraged Lee from reporting his overtime, thereby calling
into question whether Hanjin’s records reflect all of Lee’s overtime.
Hanjin’s recordkeeping and payroll procedures are not in dispute. Hanjin
paid Lee a weekly salary for forty hours of work per week. [69] ¶ 57. Lee could also
submit to his supervisor an “overtime report” detailing any additional overtime
hours worked in a pay period. [69] ¶¶ 57–58. Before August 2016, Hanjin did not
use a formal timekeeping system to track Lee’s hours; rather, he self-reported
overtime with the overtime report. [69] ¶¶ 58, 70; [62] at 2–3. In accordance with
these procedures, Hanjin paid Lee for overtime work at various points in the
relevant period. [69] ¶ 60. However, Lee claims that he also worked overtime hours
that he did not submit in an overtime report and for which he was not paid.
Lee has provided evidence that at least one of his supervisors discouraged
him from submitting overtime, thereby creating a fact issue as to the accuracy of
Hanjin’s records. Specifically, Lee testified that his former supervisor, Park, told
Lee in 2013 to underreport his overtime hours. [69] ¶¶ 61, 67. Lee testified that
Choi also encouraged Lee to underreport his overtime twice, once in late 2014 and
again in early 2015. [69] ¶ 75; [70-1] at 527–28. Park’s successor, Kevin Lee, never
himself encouraged underreporting, and there is no evidence Kevin Lee knew that
Park, Choi, or anyone did so. [61] ¶¶ 65–66.
The parties disagree about whether Choi was Lee’s supervisor rather than
colleague. If Choi was Lee’s supervisor, and if a jury were to credit Lee’s testimony
that Choi discouraged Lee from reporting overtime, that would create a fact issue
about the accuracy of Hanjin’s records. See Blakes, 75 F. Supp. 3d at 814. Lee
testified that he submitted his overtime forms directly to Choi, who was responsible
for approving the request before forwarding it to Kevin Lee. [69] ¶ 59. As Hanjin
points out, Kevin Lee testified that Choi and Lee were “equals.” [61] ¶ 78. But an
October 4, 2016 letter from Hanjin’s HR manager to Lee referred to Choi as Lee’s
supervisor, and instructed Lee to have his overtime requests “signed either by Ms.
Choi or Mr. [Kevin] Lee.” [69] ¶ 78. Considering this conflicting evidence, there is a
material dispute of fact with respect to whether Choi was Lee’s supervisor.
Hanjin argues that Lee could not have been deterred from reporting overtime
since it is undisputed that Lee did report and Hanjin did pay him for overtime
work. Hanjin cites Bjornson v. Daido Metal U.S.A., Inc., 12 F. Supp. 2d 837, 840–
41 (N.D. Ill. 1998). There, the court held that the plaintiff’s testimony about
overtime work was “flatly belied” by the fact that the plaintiff had submitted
“detailed and extensive” requests totaling “694 hours of overtime,” all of which were
honored. Id.
Bjornson, however, is distinguishable. While Lee submitted overtime
requests that were honored, his testimony that he underreported hours is
nonetheless plausible. Unlike Bjornson, Hanjin has not shown that Lee’s requests
were so extensive or detailed that they could not have understated the truth. Lee
contends based on earnings statements that Hanjin paid Lee 5 hours of overtime in
2015, [69] ¶ 74; [68-1] at 18–41.2 Given Lee’s testimony that both Park and Choi
encouraged him to underreport his overtime, see [61] ¶¶ 61, 75, a reasonable
factfinder could decide that Lee reported some but not all his overtime work and

2 Lee does not always provide appropriate record citations in responding to Hanjin’s
Statement of Facts. [69] ¶ 74. Generally, the court cannot independently review the
extensive record to locate missing record citations, but the court has done so in this
instance.
that Hanjin’s records did not reflect all of Lee’s overtime work. Garcia, 2018 WL
6045206, at *6 (“That [defendant] never altered [plaintiff’s] time records or rejected
an overtime request does not eliminate the effect of its discouragement against
claiming overtime or its awareness that she was working overtime.”).
Because a reasonable factfinder could decide that Hanjin’s records did not
reflect all of Lee’s overtime work, Lee is only required to “produce sufficient
evidence to show the amount and extent of [overtime] work as a matter of just and
reasonable inference.” Turner, 595 F.3d at 691 (quoting Anderson, 328 U.S. at 687).
B. Amount and Extent of Overtime Work
Lee still must “produce sufficient evidence to show the amount and extent of”
any unpaid overtime work “as a matter of just and reasonable inference.” Melton,
838 F.3d at 818 (quoting Anderson, 328 U.S. at 687). At the summary judgment
stage, the question is whether a reasonable factfinder could find in Lee’s favor
under this standard. Hanjin argues that Lee cannot satisfy the “just and
reasonable inference” standard, since Lee’s only evidence of unreported overtime is
his “self-serving” testimony. [62] at 5. But the Seventh Circuit has emphasized
that the term “self-serving” may not “be used to denigrate perfectly admissible
evidence through which a party tries to present its side of the story at summary
judgment.” Hill v. Tangherlini, 724 F.3d 965, 967 (7th Cir. 2013). Lee may
appropriately rely on his own deposition testimony to identify a material factual
dispute as to how much compensable overtime he worked. See Dominguez v.
Quigley’s Irish Pub, Inc., 790 F. Supp. 2d 803, 815 (N.D. Ill. 2011) (“[T]he cases are
uniform in holding that an employee may satisfy his burden of proof under the Act
by relying on his recollection alone.”).
The Seventh Circuit has held that plaintiffs may use “triggering factors” to
help them recall when they worked overtime. See Brown, 534 F.3d at 597–98 (citing
Allen, 495 F.3d at 1317); see also Espenscheid v. DirectSat USA, LLC, 705 F.3d 770,
775 (7th Cir. 2013) (noting that an employee could reconstruct unreported time
“from memory, inferred from the particulars of the jobs the [employee] did, or
estimated in other ways”). Plaintiffs may also rely on approximations. See Kuebel
v. Black & Decker Inc., 643 F.3d 352, 364 (2d Cir. 2011) (holding that an employee’s
declaration estimating that he performed an average of “one to five hours of
uncompensated overtime each week,” even if not “precise,” provided sufficient proof
of damages). However, a plaintiff may not rely on speculation alone. See Brown,
246 F. Supp. 3d at 1220 (explaining that “[b]are allegations” and “vague
undocumented estimates” do not survive summary judgment).
Lee’s testimony satisfies the “just and reasonable” standard for purposes of
summary judgment. Lee testified that in 2013, he would typically start his morning
route around 8:00 a.m. and would work continuously until around noon or 1:00 p.m.
[69] ¶ 41. He would sometimes take a thirty-minute lunch break, but other times
would instead eat in the car. [69] ¶ 42. After lunch, he would continue to pick up
items until 5:00 or 6:00 p.m., when he returned to the warehouse. [69] ¶ 43. The
parties agree that after Lee returned from his afternoon route, Choi would send a
manifest email to Hanjin’s headquarters. [61] ¶ 44. Lee would scan, weigh, and
pack the items. [69] ¶ 45. Lee testified that in 2013, his average workday would
end around 7:00 p.m. on Monday, Tuesday, Thursday, and Friday. [70-1] at 420.
Lee testified that on Wednesday, his job duties varied, and he worked for eight
hours, at least at times (as discussed in the footnote, there is a dispute as to how
much Lee worked on Wednesdays in 2013 or at other times). [70-1] at 422–23.3
Lee testified that in 2014 and 2015, his schedule was roughly the same as in
2013. [70-1] at 442, 470. In July 2014, Lee began driving to Naperville twice a
week. On these days, he would leave his home earlier. [70-1] at 453, 471. When
Hanjin relocated its office to Wood Dale, Lee had the additional duty of driving
packages from the Wood Dale location to the airport. Lee testified that this drive
would take thirty to forty minutes. [61] ¶ 48. When he left the airport, he received
a timestamped weighing check report. [61] ¶ 46. Lee also testified that toward the
end of 2014, the computer or scanner broke down. [70-1] at 527. The system was
broken from late October 2014 until March 2015. During this time, Lee and Choi
would work late entering information by hand, sometimes for 12 or 13 hours, such
that Lee arrived home at 9:00 p.m. at the latest. [70-1] at 476–77. Lee would
typically leave the office to go to the airport around 7:00 p.m. during that time.
[70-1] at 527.
During the second half of 2015 and 2016, Lee’s work hours began to decrease.
[70-1] at 478. In July of 2016, he stopped driving to Naperville. [70-1] at 478. After
Hanjin got the new company car (in July or August of 2016 as noted above), he
would drive from the airport to Hanjin’s office before returning home. He testified
that starting in August 2016, he would typically return to Hanjin’s headquarters at
7:00 p.m. [61] ¶ 52. Around then, Hanjin started occasionally using a third-party
truck to deliver shipments to O’Hare. On days when this occurred, Lee’s day ended

3 There is a dispute as to how much Lee worked on Wednesdays in 2013 or at other times,
see [69] ¶ 27, and whether at least some of Lee’s daily logs indicate the hours Lee worked,
see [69] ¶ 29. Lee’s testimony on how much he worked on Wednesdays is at times unclear.
See [70-1] at 409, 422–23, 444–45, 473–75. But in the end, the testimony is enough to raise
fact issues as to how much Lee worked on Wednesdays in different years and whether the
hours he worked on Wednesdays (along with the hours he worked the rest of the week)
exceeded 40.

Whether a reasonable factfinder would have a basis in the record for a just and
reasonable inference as to the amount is a closer call due to the lack of precision of Lee’s
testimony. But given that at summary judgment the record must be viewed in the light
most favorable to the nonmovant, that the employer bears responsibility for keeping
accurate records, and that in the absence of those records Lee’s testimony would allow some
general estimates, summary judgment is not warranted.
earlier. [61] ¶ 54. After Hanjin moved to the current Mount Prospect location (in
February 2016 as noted above), Lee testified, it would take him twenty-five minutes
to drive from there to the airport. [61] ¶¶ 55–56.
In sum, a reasonable factfinder could conclude, if it credited Lee’s testimony,
that for several years, Lee worked on average from 8 a.m. to 7 p.m. four days a
week, and at times up to eight hours on the fifth day. While compensable work
hours begin at the first work location, see 29 CFR § 785.35 (“An employee who
travels from home before his regular workday and returns to his home at the end of
the workday is engaged in ordinary home to work travel which is a normal incident
of employment. This is true whether he works at a fixed location or at different job
sites. Normal travel from home to work is not worktime.”), and Lee would often
take a half-hour lunch break, these hours add up to an average of over forty hours a
week during weeks in which Lee received no overtime pay. Lee’s testimony is
enough to raise “a genuine issue of fact as to whether [plaintiff] was not properly
paid overtime in violation of the FLSA.” Brown, 534 F.3d at 596–97. It is also
enough to allow a reasonable factfinder to conclude that Lee has shown the amount
of unpaid overtime as a matter of just and reasonable inference. Id. at 597 (noting
that records of when the business was open, along with the employee’s testimony
about her typical after-hours duties, formed a satisfactory “basis for arriving at a
just and reasonable inference as to the uncompensated hours”); see also Garcia,
2018 WL 6045206, at *6–7; Meadows, 2017 WL 5192009, at *9–10 & n.20.
Nevertheless, Hanjin argues that summary judgment is appropriate because
Lee does not know precisely how many uncompensated overtime hours he worked.
As Hanjin points out, Lee testified that “I know that I work[ed] a lot of hours, but I
don’t have anything in record.” [61] ¶ 79. But again, it is the employer’s burden to
keep accurate records; and the cases Hanjin cites to support this assertion involve
speculative and conclusory claims that lack the foundational testimony that Lee has
provided.
In Turner, 595 F.3d at 691, the plaintiff did not produce any evidence at all
showing how much overtime pay he was denied. Instead, he merely argued that his
employer’s records were inaccurate. Id. at 690–91 & n.8. In Vince v. Illinois Cent.
Sch. Bus, LLC, No. 09-cv-05360, 2011 WL 578832, at *13 (N.D. Ill. Feb. 9, 2011), the
plaintiff testified to working 84-hour work weeks for which she was not paid
overtime. But there, the plaintiff did not allege or argue that the defendant’s
records—which contradicted her account—were inaccurate. Moreover, the plaintiff
also failed to specify the timeframe in which she worked 84-hour work weeks. The
court observed: “In 2007, did Plaintiff work these hours until January, or until
March? The Court has no way to determine this. Throwing darts at a calendar
would seemingly provide as reliable a time period for this work as would discerning
these dates from Plaintiff’s evidence.” Id. The court thus granted summary
judgment to the defendant, holding that despite the plaintiff’s conclusory testimony
alleging unpaid overtime, there was “no reasonable way to determine the amount
and extent of the work Plaintiff performed.” Id.
In Gatto v. Mortg. Specialists of Illinois, Inc., 442 F. Supp. 2d 529 (N.D. Ill.
2006), the court held that the plaintiff’s statement asserting “without specificity
that she worked more than 40 hours per week ‘nearly every week’” was not, by
itself, sufficient to create a genuine issue of material fact. Id. at 536. In reaching
that conclusion, the court relied on Haywood v. North Am. Van Lines, Inc., 121 F.3d
1066, 1071 (7th Cir. 1997), for the proposition that “conclusory allegations and self-
serving affidavits, if not supported by evidence in the record, will not preclude
summary judgment.” Id. As noted above, the Seventh Circuit has emphasized that
at summary judgment, courts must consider “self-serving” evidence that is
otherwise admissible. Hill, 724 F.3d at 967. And in any event, the Gatto plaintiff
did not offer specific testimony about his tasks and how long they took at different
points in time. In this case, Lee has laid a proper factual foundation for his
estimates about average work hours during different periods of time. Thus, Lee has
provided enough specificity to survive summary judgment.
However, Hanjin also argues that Lee’s testimony is controverted by
available records. As the Seventh Circuit has explained, “[r]elying on the
employee’s recollection is permissible given the unlikelihood that an employee
would keep his own records of his work hours. . . . But relying on recollection does
not mean the plaintiff may survive summary judgment where his recollection is
flatly refuted by other evidence in the record, . . . or his story is so internally
inconsistent or implausible on its face that no reasonable person would believe it.”
Melton, 838 F.3d at 819 (citations and internal quotation marks omitted).
Hanjin points to two sources of evidence that it suggests “flatly refute” Lee’s
testimony regarding overtime hours worked: (1) credit card receipts and weighing
check reports, and (2) Google Maps. Lee responds with two additional sources of
evidence that he suggests corroborate his testimony: I-Pass records, and personal
calendars and delivery logs. On reply, Hanjin argues that the I-Pass records also
refute Lee’s testimony. Because the court does not think that any of Hanjin’s
evidence makes Lee’s story so “implausible on its face that no reasonable person
would believe it,” summary judgment is inappropriate. Id.
1. Credit Card Receipts and Weighing Check Reports
First, Hanjin uses credit card receipts and timestamped weighing check
reports to argue that Lee’s typical day was no more than 9 hours. Hanjin points
out, and Lee does not dispute, that Lee’s credit card receipts show that on days
when he filled his car with gas on the way to his first pickup, his workday started
sometime after the time shown on the credit card receipts, which are timestamped
between 8:20 a.m. and 9:30 a.m. [61] ¶¶ 35, 37. Hanjin relies on timestamped
weighing check reports, which Lee testified indicate the time he left the airport at
the end of his day, [61] ¶ 46, to argue that Lee’s day typically ended no later than
5:30 p.m. Hanjin argues that “[t]hus, records show that KJ Lee worked from 8:30
a.m. to 5:30 p.m. on Mondays, Tuesdays, Thursdays, and Fridays, with a half-hour
lunch. Even this calculation is generous to him, as it ignores the days when he
started his day at 9:30 a.m. or later. . . . On Wednesdays, KJ Lee worked a half
day. . . . Thus, the record shows that for most of the limitations period, KJ Lee
worked no more than thirty-eight hours per week.” [62] at 7 (citations omitted).
In response, Lee points out that the forty weight receipts attached to Hanjin’s
motion are from 2016. He argues that 2016 is not a representative year, since he
allegedly worked fewer hours that year. [70-1] at 478. He also argues that most of
the “air waybills” from before 2016 do not have the timestamped report attached,
and attaches one receipt from 2014 showing that he left the airport at 8:10 p.m.
[68-1] at 78.
The 2016 weight stamps do somewhat undermine Lee’s testimony that he
“usually” left the airport at 7:00 p.m. in 2016, although some of the stamps are
consistent with that timeframe. Nevertheless, Hanjin has only attached a small
number of receipts from a single year. Hanjin explains that it has receipts “for most
of 2016,” and that it “has provided a representative sample” “in the interest of
brevity,” [61] at 8 n.3; but this implies that it lacks receipts for much of the time
period at issue here (beginning December 1, 2011). A reasonable factfinder could
decide that the 2016 receipts do not undermine Lee’s general testimony about his
work hours.
2. Google Maps
Hanjin also relies on Google Maps estimates of driving time between various
locations to argue that some of Lee’s driving time estimates are impossible.4 For
example, Lee testified that it usually took him 35 to 40 minutes to drive from the
Wood Dale location to the airport. [61] ¶ 48. Hanjin attaches a Google Maps
estimate showing that this drive only takes 17 minutes. [61] ¶ 49; [63-1] at 301.
After Hanjin moved to the current Mount Prospect location, Lee testified that it
would take him 25 minutes to drive from there to the airport. [61] ¶ 56. Hanjin
again attaches a Google Maps estimate showing that this drive takes approximately
10 minutes. [61] ¶ 55.
Lee argues that Irving Park Road was closed to traffic for construction during
this time, forcing him to take a detour. Lee relies on an affidavit (submitted along

4 The court can take judicial notice of locations, approximate distances, and transit times
from Google Maps. See Moore v. Magiera Diesel Injection Serv., Inc., No. 18-cv-03762, 2019
WL 2502029, *3 (N.D. Ill. June 17, 2019); Cloe v. City of Indianapolis, 712 F.3d 1171, 1177
n.3 (7th Cir. 2013), overruled on other grounds by Ortiz v. Werner Enter., 834 F.3d 760 (7th
Cir. 2016).
with his response to Hanjin’s summary judgment motion) and an Illinois
Department of Transportation bulletin to support this claim. [69] ¶ 49; [68-2] ¶ 20.
However, at his deposition, Lee testified that he “would take Irving Park” and
“make a left on Mannheim.” [70-1] at 440–41. The Seventh Circuit has been
“highly critical of efforts to patch up a party’s deposition with his own subsequent
affidavit. . . . Almost all affidavits submitted in litigation are drafted by the
lawyers rather than by the affiants . . . . Where deposition and affidavit are in
conflict, the affidavit is to be disregarded unless it is demonstrable that the
statement in the deposition was mistaken, perhaps because the question was
phrased in a confusing manner or because a lapse of memory is in the
circumstances a plausible explanation for the discrepancy.” Russell v. Acme–Evans
Co., 51 F.3d 64, 67–68 (7th Cir. 1995) (citations omitted); see also James v. Hale,
959 F.3d 307, 316, 2020 WL 2487603, at *5 (7th Cir. May 14, 2020) (“[T]he sham-
affidavit rule prohibits a party from submitting an affidavit that contradicts the
party’s prior deposition or other sworn testimony.”); Brown, 534 F.3d at 598. Here,
Lee’s affidavit is somewhat corroborated by the attached IDOT bulletins, suggesting
that Lee’s earlier testimony could have been mistaken. But the court does not need
to resolve the tension between Lee’s deposition testimony and affidavit, because
even without the Irving Park closure, the lengths of these drives are disputed facts.
A reasonable factfinder could credit Lee’s recollection that these drives took
substantially longer than Hanjin’s Google Maps estimates. Lee argues, for example,
that these estimates do not account for rush-hour traffic. Lee has not testified to
drive lengths that are impossible as a matter of law.
3. I-Pass Records
For his part, Lee argues that several pieces of evidence corroborate his
testimony that he worked uncompensated overtime. First, he attaches I-Pass
records that show him passing tolls at O’Hare West and Touhy Avenue. See
generally [70]. Lee also presents a summary chart of the I-Pass records to show a
list of numerous days in 2014 when he was on the highway for over eight hours.
[68-1] at 42–45. Lee argues that actual work hours on these days would have been
even greater, since he would have done a variety of work tasks after passing
through the toll plaza at the end of the day. Pay records show that Hanjin did not
pay him for any overtime work on these days, or any days between February 14,
2014, and December 31, 2014. [68-1] at 47–48.
Hanjin argues that the I-Pass records fail to support Lee’s claim for several
reasons. First, it argues that Lee drove the company car for personal as well as
company use. [61] ¶ 15. But this is disputed, since Lee testified that he did not.
[70-1] at 437. Second, Hanjin argues that since Lee testified to starting his day
around 8:00 a.m., he cannot rely on records that show him starting his day earlier
in the morning. But this is an oversimplification of Lee’s testimony, since Lee only
testified to his average start time, and testified to starting earlier on days where he
drove to Naperville. [70-1] at 453, 471.
However, Hanjin also makes arguments that could successfully undermine
the value of the I-Pass records, if credited by a factfinder. First, Lee’s compensable
work hours begin at his first work location. See 29 CFR § 785.35 (time spent
traveling from home to the day’s first worksite is not compensable). If he passed the
first toll on the way to his first location, this time would not be an accurate indicator
of his starting time for pay purposes. As to the end of the day, Lee testified that he
did not drive through any tolls on his way from Hanjin’s office to O’Hare
International Airport but did on his way home from work. [70-1] at 437, 440.
Logically, this means he passed the last toll after finishing work, undermining his
argument that he worked additional hours after passing through the toll. Finally,
while Lee has pointed to individual days in which more than eight hours passed
between the toll charges, Hanjin points out on reply that even assuming that the
I-Pass records accurately reflect the number of hours Lee worked on those
particular days, the records for those particular workweeks do not show any weeks
in which the hours based on I-Pass records add up to more than forty hours. [71]
at 6 & n.3; see DeKeyser, 735 F.3d at 570 (overtime pay required for hours worked
“beyond forty hours in one work week”).
Ultimately, these arguments go to the weight of the I-Pass records. Lee does
not rely solely on these records to defeat summary judgment. Nor does Lee argue
that the I-Pass records standing alone account for all hours worked each and every
day. As a result, even though Hanjin effectively pokes holes in some of Lee’s
testimony, the evidence provided is not enough to conclude that Lee’s story is so
“implausible on its face that no reasonable person would believe it.” Melton, 838
F.3d at 819 (citation and internal quotation marks omitted).
4. Personal Calendars and Delivery Logs
Finally, Lee argues that his personal calendars and Hanjin’s delivery logs
corroborate his testimony regarding overtime worked. Lee testified that he marked
his personal calendars with a symbol on days when he worked “longer hours, like 12
to 13 hours.” [70-1] at 548. While this notation did not indicate the precise hours
that he worked, Lee testified that it serves as a general reminder “of the long hours
that [he] worked.” [70-1] at 548–49. Similarly, Lee points to Hanjin’s daily delivery
logs on which Lee recorded the pickup locations he visited. According to Hanjin,
many of the logs do not record time spent at each location. [61] ¶¶ 28–29; [63-1]
(attaching some logs). Lee contends that in 2016 he began to annotate the logs with
more timing details, [69] ¶ 29, but cites a substantial page range of Bates-stamped
documents without indicating where in the voluminous record those documents
appear or whether some of them appear in the logs Hanjin attached, [63-1].
Nonetheless, even without timing details, the logs provide evidence of the work
Lee did.
Hanjin argues that the calendar notations constitute the type of “bare
allegations” and “vague undocumented estimates” that other courts have held do
not preclude summary judgment. [71] at 6–7 (citing cases, including Melton, 838
F.3d 814; Brand v. Comcast Corporation, 135 F. Supp. 3d 713, 742 (N.D. Ill. 2015);
Golden v. World Sec. Agency, Inc., 884 F. Supp. 2d 675, 700−01 (N.D. Ill. 2012);
Gatto, 442 F. Supp. 2d at 535−36). But in those cases, the plaintiffs relied solely on
sources that lacked explanations, memory “triggering factors,” or foundational
testimony. Here, Lee has provided enough testimony about his work hours to create
a triable fact issue about his unpaid overtime hours. The calendars and the logs
add additional detail.
II. Knowledge
Next, Hanjin argues that even if Lee worked additional overtime for which he
was not compensated, Hanjin did not have actual or constructive knowledge of that
work.
Under the FLSA, “‘[e]mploy’ includes to suffer or permit to work.” 29 U.S.C.
§ 203(g). The regulations explain that “[w]ork not requested but suffered or
permitted is work time. For example, an employee may voluntarily continue to
work at the end of the shift. . . . The reason is immaterial. The employer knows or
has reason to believe that he is continuing to work and the time is working time.”
29 C.F.R. § 785.11. “The rule is also applicable to work performed away from the
premises or the job site . . . . If the employer knows or has reason to believe that the
work is being performed, he must count the time as hours worked.” § 785.12. “In
all such cases it is the duty of the management to exercise its control and see that
the work is not performed if it does not want it to be performed. It cannot sit back
and accept the benefits without compensating for them. The mere promulgation of
a rule against such work is not enough. Management has the power to enforce the
rule and must make every effort to do so.” § 785.13.
Section 203(g)’s “broad definition . . . helps prevent evasion by employers who
might seek to issue formal written policies limiting overtime that are widely
violated, or who might deliberately close their eyes to overtime work their
employees are doing.” Allen v. City of Chicago, 865 F.3d 936, 938 (7th Cir. 2017);
see also Kellar v. Summit Seating Inc., 664 F.3d 169, 177 (7th Cir. 2011). “If the
employer does not want to pay overtime, its management must ‘exercise its control
and see that the work is not performed.” Allen, 865 F.3d at 938 (quoting § 785.13).
“Employers must, as a result, pay for all work they know about, even if they did not
ask for the work, even if they did not want the work done, and even if they had a
rule against doing the work.” Allen, 865 F.3d at 938.
“That strict rule has a limit, however. It stops short of requiring the
employer to pay for work it did not know about, and had no reason to know about.”
Id. (citations and internal quotation marks omitted).
“The employer’s knowledge can be either actual or constructive. . . .
An employer has constructive knowledge of an employee’s work if it should have
acquired knowledge of that work through reasonable diligence.” Id. (citations
omitted). Whether an employer has exercised “reasonable diligence” is a fact-
specific inquiry. Id. at 943.
“One way an employer can exercise diligence is by establishing a reasonable
process for an employee to report uncompensated work time.” Id. at 938–39. “But
an employer’s formal policy or process for reporting overtime will not protect the
employer if the employer prevents or discourages accurate reporting in practice.”
Id. at 939.
Lee has provided adequate evidence of constructive knowledge. As discussed
above, Lee testified that his former supervisor, Park, told him to underreport his
overtime hours. [61] ¶ 61; [70-1] at 516, 525. Lee testified that Choi also
encouraged Lee to underreport his overtime. [61] ¶ 75; [70-1] at 526–33.
A reasonable factfinder could determine that a supervisor who discourages an
employee from reporting overtime has reason to know that employee is in fact
working overtime, constituting constructive knowledge. Garcia, 2018 WL 6045206,
at *5–6; Meadows, 2017 WL 5192009, at *9.
Moreover, if a supervisor (whether Park or Choi) had constructive knowledge
of Lee’s overtime work, this knowledge may be imputed to Hanjin. See Skelton, 382
F. Supp. 2d at 1073; Ladegaard v. Hard Rock Concrete Cutters, Inc., No. 00-cv-5755,
2004 WL 1882449, at *4 (N.D. Ill. Aug. 18, 2004) (“Knowledge of a supervisor is
imputed to the employer, and it is sufficient that a manager or supervisor, acting
with reasonable diligence, had the opportunity to acquire the knowledge.”).
As discussed above, there is a material dispute of fact as to whether Choi was
Lee’s supervisor. Lee gave his overtime requests to Choi instead of sending them to
Kevin Lee directly. [69] ¶ 59. Lee’s affidavit states that Choi “almost always
ignored” his requests for overtime and “did not provide the form for [him] to
submit.” [68-2] at 2. Even setting aside the postdeposition affidavit, Lee offers the
October 4, 2016 letter from Hanjin’s HR manager to Lee, which referred to Choi as
Lee’s supervisor, and instructed Lee to have his overtime requests “signed either by
Ms. Choi or Mr. [Kevin] Lee.” [69] ¶ 78. While there is conflicting testimony
regarding whether Choi could approve or disapprove Lee’s requests, see [68-2] at 2;
[61] ¶ 59, the court will not weigh this evidence at summary judgment. The current
record would allow a reasonable factfinder to decide that Choi encouraged Lee to
underreport his hours and / or oversaw approval of the forms. Finally, even if a
reasonable factfinder concluded that Choi was not Lee’s supervisor and could not
approve the forms, the factfinder could credit Lee’s testimony with respect to Park.
Thus, there is a dispute about whether Hanjin had constructive knowledge of Lee’s
overtime work, making summary judgment inappropriate.
Hanjin also argues that after the 2014 conversation in which Choi
discouraged Lee from reporting overtime, no one at Hanjin, including Choi or Kevin
Lee, knew whether Lee actually worked any uncompensated overtime. [61] ¶¶ 63–
66, 69. This argument does not warrant summary judgment. Contrary to Hanjin’s
assertion, Lee testified that Choi discouraged him from reporting overtime twice, in
late 2014 and early 2015. [70-1] at 528. Choi also worked directly with Lee
throughout the relevant period. Since Lee testified that they worked late together
during several periods, and that she knew when he was leaving for the airport, the
current record contains a basis for a reasonable factfinder to decide that she had
actual knowledge of his overtime work.
Hanjin relies again on Bjornson, here to refute the allegation of Choi’s actual
knowledge. In that case, however, the court noted that plaintiff’s supervisor
observed the plaintiff “playing computer games and doing personal work on his
computer after hours,” and did not confirm that he ever saw or knew that the
plaintiff was working for the defendant when he stayed late. Bjornson, 12 F. Supp.
2d at 842. In this case, Hanjin has not argued that Lee ever stayed late at work to
conduct personal activities. Thus, Bjornson is not comparable.
In sum, Lee has produced enough evidence that Hanjin had actual or
constructive knowledge of his unpaid overtime work to survive Hanjin’s motion for
summary judgment.
Conclusion
The motion for summary judgment [60] is denied.
Date: February 12, 2021 /s/ Martha M. Pacold

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10144165. Public record. Not legal advice.