Frechette v. Zia Taqueria, LLC
| Decision Date | 07 February 2020 |
| Docket Number | No. 2:18-cv-3208-DCN,2:18-cv-3208-DCN |
| Parties | ROBERT JOHN FRECHETTE, on behalf of himself and all others similarly situated, Plaintiff, v. ZIA TAQUERIA, LLC and KEVIN GRANT Defendants. |
| Court | U.S. District Court — District of South Carolina |
The following matter is before the court on plaintiff Robert John Frechette's ("Frechette") motion for partial summary judgment, ECF No. 38. For the reasons set forth below, the court denies the motion.
Zia Taqueria ("Zia") is Mexican-fusion restaurant located at 1956A Maybank Highway on James Island. Defendant Kevin Grant ("Grant") is the owner and sole member of defendant Zia Taqueria, LLC, through which he owns and operates the restaurant. Frechette worked as a server at Zia from 2017 to November 2018, and the similarly situated, unnamed plaintiffs were all employees of Zia at some point between 2015 and 2018. Zia is a "counter-style" restaurant meaning that customers place orders with an employee at the counter rather than from a member of a dedicated waitstaff. From 2015-2018, Zia employed four "front of the house" ("FOH") positions: counter attendant, bartender, floor assistant, and front of the house manager ("FOH manager"). Counter attendants, bartenders, and floor assistants were allegedly paid $2.13 per hour because Zia took the "tip credit" under the Fair Labor Standards Act ("FLSA"), which allows an employer to use tips to meet his or her minimum wage obligations. FOH managers, on the other hand, are salaried employees who make well over minimum wage. When Zia opened, Grant created and implemented a tip-pooling system in which all of the tips earned in a given shift were collected and pooled. At the end of each night, the tip pool was distributed among the FOH positions, including to the FOH manager if the restaurant's net sales met a certain threshold.
Frechette filed this lawsuit on November 28, 2018, alleging that Zia's tip-pooling policy violates the Fair Labor Standard Act ("FLSA"), the South Carolina Payment of Wages Act ("SCPWA"), and the North Carolina Wages and Hour Act ("NCWHA") . Frechette's complaint asserts four claims: (1) failure to pay minimum wage under §§ 203 and 206 of the FLSA, (2) failure to pay overtime wage under § 207 of the FLSA, (3) unauthorized deductions from wages under the SCPWA, and (4) unauthorized nonpayment of wages under the NCWHA.
On December 6, 2019, Frechette filed a motion for partial summary judgment on his FLSA claims. ECF No. 38. On January 3, 2020, defendants responded, ECF No. 46, to which Frechette replied on January 10, 2020, ECF No. 48. On January 17, 2020, defendants moved for leave to file sur-reply, ECF No. 51, which the court granted on January 22, 2020, ECF No. 54. The court held a hearing on January 27, 2020. Thus, this matter is ripe for the court's review.
Summary judgment shall be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R.Civ. P. 56(c). Rule 56(c) of the Federal Rules of Civil Procedure requires that the district court enter judgment against a party who, "'after adequate time for discovery . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 190 (4th Cir. 1997) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248. "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
"[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. When the party moving for summary judgment does not bear the ultimate burden of persuasion at trial, it may discharge its burden by demonstrating to the court that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The non-movant must then "make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322.
Any reasonable inferences are to be drawn in favor of the nonmoving party. Anderson, 477 U.S. at 255, Webster v. U.S. Dep't of Agric., 685 F.3d 411, 421 (4th Cir.2012). However, to defeat summary judgment, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence. See Anderson, 477 U.S. at 252; Stone, 105 F.3d at 191. Rather, "a party opposing a properly supported motion for summary judgment . . . must 'set forth specific facts showing that there is a genuine issue for trial.'" Bouchat, 346 F.3d at 522 (quoting Fed. R. Civ. P. 56(e) (2002) (amended 2010)). If the adverse party fails to provide evidence establishing that the fact finder could reasonably decide in his favor, then summary judgment shall be entered "regardless of '[a]ny proof or evidentiary requirements imposed by the substantive law.'" Id. (quoting Anderson, 477 U.S. at 248).
Frechette argues that he is entitled to summary judgement on his FLSA claims on two grounds. First, despite not properly pleading this claim in the Amended Complaint, Frechette argues that defendants failed to give proper notice of the FLSA's minimum wage and tip credit provisions to Zia employees, in violation of 29 U.S.C. § 203(m)(2). Second, Frechette argues that Zia's tip-pooling policy violates § 203(m) because the tip pool is improperly shared with FOH managers, who are not "employees who customarily and regularly receive tips." The court addresses each in turn, finding that neither ground warrants summary judgment.
"The FLSA is best understood as the minimum wage/maximum hour law," Trejo v. Ryman Hosp. Properties, Inc., 795 F.3d 442, 446 (4th Cir. 2015), intended "to protect the rights of those who toil, of those who sacrifice a full measure of their freedom and talents to the use and profit of others," Purdham v. Fairfax Cty. Sch. Bd., 637 F.3d 421,427 (4th Cir. 2011) (quoting Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597 (1944)). Accordingly, "[t]he FLSA should be broadly interpreted and applied to effectuate its goals." Purdham v. Fairfax Cty. Sch. Bd., 637 F.3d 421, 427 (4th Cir. 2011).
The FLSA requires all employers to pay employees a minimum wage of $7.25 an hour. 29 U.S.C. § 206(a)(1). Recognizing that many employees earn a significant portion of their income through tips, the FLSA allows employers to take a "tip credit" against the minimum wage requirement for tipped employees:
29 U.S.C. § 203(m)(2)(A). In other words, an employer may use an employee's tips to satisfy the minimum wage requirement, provided that certain conditions are satisfied, set out in the statute:
The additional amount on account of tips may not exceed the value of the tips actually received by an employee. The [tip credit] shall not apply with respect to any tipped employee unless [1] such employee has been informed by the employer of the provisions of this subsection, and [2] all tips received by such employee have been retained by the employee, except that this subsection shall not be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips.
Id. An employer's failure to satisfy either condition disqualifies him from claiming the tip credit to satisfy the requirement that he pay his employees minimum wage. BecauseFrechette argues that defendants failed to satisfy both conditions, the court addresses each in turn.
Frechette claims that he is entitled to summary judgment on his FLSA claims because the "undisputed evidence" establishes that Zia employees were not informed of § 203(m)'s provisions, in violation of 29 U.S.C. § 203(m)(2)(A).1 However, the court need not address the substance of the issue because it cannot grant summary judgment in favor of a plaintiff with respect to a claim that was not properly alleged in his complaint.
The Federal Rules of Civil Procedure require "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). "[T]he requirements for pleading a proper complaint are substantially aimed at assuring that the defendant be given adequate notice of the nature of a claim being made against him, [but] they also provide criteria for defining issues for trial." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). The requirement that all claims be properly alleged ensures that a defendant has ...
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