United States District Court, E.D. Arkansas, Western Division
JACQUELINE L. CONNERS et al individually and on behalf of all others similarly situated Plaintiffs,
CATFISH PIES, INC., et al, Defendants.
BRIAN S. MILLER, District Judge.
Plaintiffs' motion for summary judgment [Doc. No. 115] is granted in part and denied in part. The motion is granted as to plaintiffs' claim that the cooks were not tipped employees. Summary judgment is denied as to the remaining claims.
Viewed in the light most favorable to defendants, the non-moving parties, the material facts are as follows. Prior to October 2013, Ben Biesenthal and Tim Chappell, each individually owned an interest in Catfish Pies, Inc., Pizza Profits, Show Me Pies, Three Buddies, Inc., and Gusano's Pizzeria, Inc. See Defendants' Response to Statement of Facts, Doc. No. 147, ¶ 2 ("RSOF"). Biesenthal is the president of Crazy Pies, Pizza Profits, and Show me Pies, and until October 2013, he was also the president of Gusano's Pizzeria, Inc., n/k/a Hendrix Brand, Inc. In October of 2013, Timothy Chappell became sole owner and president of Hendrix, and conveyed his interests in the other entities listed above. See id. ¶ 3. Three Buddies provides administrative services to Catfish Pies, Pizza Profits, and Show Me Pies, including payroll processing, bookkeeping, and maintenance of initial employee's tax forms, immigration forms, and payroll processing documents. See id. ¶ 5. Moreover, Three Buddies supplied employee handbooks for Catfish Pies, Pizza Profits, and Show Me Pies. See Defendants' SOF, Doc. No. 125, ¶ 24-27.
Biesenthal hires and fires general managers of Catfish Pies, Pizza Profits, and Show Me Pies. See id. ¶ 16. These managers hire and fire hourly employees. Id. They occasionally request Biesenthal's advice regarding termination decisions. Id. He has been directly involved in the termination of an hourly employee on one occasion. Id. The general managers are in charge of day-to-day operations for all defendants' restaurants. Id. ¶ 19. Biesenthal and his general managers periodically meet to discuss the operation of Catfish Pies, Pizza Profits, and Show Me Pies. Id. ¶ 20. Biesenthal has created the job descriptions for the kitchen staff at these restaurants. Id. ¶ 27. Except for Rachelle Hobbs, none of the plaintiffs ever worked for Hendrix. See Plaintiffs' RSOF ¶ 9, Doc. No. 142.
At all times relevant to this lawsuit, defendants used similar employee handbooks, which included a tip pooling policy ("the policy"). See Defendants' RSOF ¶ 78, Doc. No. 147. In relevant part, the handbooks state as follow: "the wait staff must tip-out' a percentage of their sales to kitchen, hostess, & bar staff." Id. ¶ 79. After plaintiffs' lawsuit was filed, Biesenthal changed the policy at Catfish Pies, Pizza Profits, and Show Me Pies to exclude the kitchen staff (cooks). Id. ¶ 17. Moreover, he implemented an arbitration policy regarding employee's complaints at Catfish Pies, Pizza Profits, and Show Me Pies. Id.
Plaintiffs filed this lawsuit against defendants alleging that each defendant has violated the Fair Labor Standard Act ("FLSA"). Plaintiffs now move for summary judgment.
II. LEGAL STANDARD
Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249-50 (1986). Once the moving party demonstrates that there is no genuine dispute of material fact, the non-moving party may not rest upon the mere allegations or denials in his pleadings. Holden v. Hirner, 663 F.3d 336, 340 (8th Cir. 2011). Instead, the non-moving party must produce admissible evidence demonstrating a genuine factual dispute that must be resolved at trial. Id. Importantly, when considering a motion for summary judgment, all reasonable inferences must be drawn in the light most favorable to the nonmoving party. Holland v. Sam's Club, 487 F.3d 641, 643 (8th Cir. 2007). Additionally, the evidence is not weighed, and no credibility determinations are made. Jenkins v. Winter, 540 F.3d 742, 750 (8th Cir. 2008).
A. Invalid Tip Pool claim
1. Cooks are Not Tipped-Employees
Summary judgment is granted on plaintiffs' claim that cooks at defendants' restaurants are not tipped employees. An employee is a tipped employee only if: 1) she is engaged in an occupation, and 2) the occupation is one in which she regularly and customarily receives at least $30 in tips per month. Fast v. Applebee's Int'l, Inc., 638 F.3d 872, 876 (8th Cir. 2011). When determining who is a tipped employee, an ad hoc analysis of the employee's duties is performed, and a per se determination is not made based upon an employee's job title. Pedigo v. Austin Rumba, Inc., 722 F.Supp.2d 714, 730 (W.D. Tex. 2010).
When an employer alleges that a particular employee is eligible to participate in a tip pool, the employer has the burden of proving the eligibility of the employee. See Roussell v. Brinker Int'l, Inc., 441 F.Appx. 222, 230 (5th Cir. 2011). Importantly, the United States Department of Labor categorizes cooks as non tipped-employees. See U.S. Department of Labor Field Operations Handbook § 30d04(c) (Dec. 9, 1988) ("DOL FOH"), available at http://www.dol.gov/whd/FOH/FOH_Ch30.pdf; see also Roussell, 441 F.Appx. at 231; Kilgore v. Outback Steakhouse of Florida, Inc., 160 F.3d 294, ...