Dana Herra Aug. 5, 2015, 12:23pm

Saying the reasoning underpinning the case was “circular,” a federal judge on Aug. 3 threw out a lawsuit by a former convenience store employee who claimed she was never paid for overtime hours she worked, despite pay stubs showing “miscellaneous pay,” which ultimately may have meant she earned more than time-and-a-half for extra hours on the clock.

In 2013, Sandra M. Avorywoskie filed a three-count suit against Kiana’s Enterprise Inc., owner of a 7-Eleven at 5789 North Milwaukee Ave., and against Admon Shamoon, the company’s president, who trained, supervised and managed Avorywoskie during the six months she worked at the convenience store. Avorywoskie’s attorneys had attempted to file the original lawsuit with class action status, claiming the failure to pay overtime is a company policy that affected other employees of Kiana’s as well. Avorywoskie withdrew that request for class certification.

In her summary judgment, Judge Sharon Johnson Coleman wrote that Avorywoskie failed to produce any evidence supporting her claim that she was underpaid, instead relying on the testimony of the defense as to how many hours she had worked and then challenging them to prove that she was paid for the overtime.

“She testified that the only person who would know how many overtime hours she worked, how much money she is owed, whether Miscellaneous Pay is overtime pay, and how it is calculated is Shamoon,” the court opinion says. “Avorywoskie would have defendants produce evidence to negate what they have testified to.”

The heart of the litigation is the pay breakdown on Avorywoskie’s pay stubs. According to the lawsuit, she worked at the 7-Eleven from February to July 2013 and was paid weekly. There were several weeks in which she worked more than 40 hours, the lawsuit claims, but her pay stubs do not show a breakdown of the additional hours with pay at time-and-a-half.

Instead, the pay stubs for those weeks include a line item of “Misc Pay,” according to court documents. Shamoon and his attorneys claim the overtime pay is included in that sum, and though Avorywoskie’s attorneys disputed it, they offered no evidence that this was not so, according to the summary judgment.

The lawsuit charged Shamoon and Kiana’s with violating the Fair Labor Standards Act and Illinois Minimum Wage Law. Under the legal framework for judging violations of the FLSA, the court wrote that Avorywoskie had the burden of proving that the defendants’ records are inaccurate and she did not get paid for overtime hours worked. According to court documents, Avorywoskie produced no evidence of the hours she had worked or anything other than her claims to indicate she was underpaid; she testified she did not know exactly how many overtime hours were in question.

“Avorywoskie also argues that since she has ‘produced’ sufficient evidence (by means of defendants’ evidence) that she worked 38 hours of overtime, defendants must come forth with some evidence to rebut hers. This reasoning is illogical and completely circular,” the court wrote.

The court wrote that Avorywoskie also offered no evidence as to what factors did determine the amount of miscellaneous pay if it was not overtime pay. In fact, calculated at time-and-a-half, the miscellaneous pay she received was slightly more than she was owed for the hours Shamoon testified she worked, though her lawsuit said that record of hours worked was not accurate.

The Illinois Minimum Wage Law allegations were also dismissed, Coleman wrote, because the law does not guarantee overtime pay. Rather, it only requires an employer to honor a contract with an employee, and Avorywoskie presented no evidence Shamoon had failed to do so.

Avorywoskie was represented by John W. Albee and Bruce B. Jackson of Anthony J. Madonia & Associates, Ltd., of Chicago.

Shamoon and Kiana's were represented by attorneys Carol L. Oshana and Katherine M. Anthony, of Oshana Law, of Chicago.

The case number is 13-cv-06062.

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