Kubiak v. S.W. Cowboy, Inc.

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Citation164 F.Supp.3d 1344
Docket NumberCase No. 3:12-cv-1306-J-34JRK
Parties David Kubiak, individually and on behalf of all other similarly situated employees, et al., Plaintiffs, v. S.W. Cowboy, Inc., a Florida Corporation, d/b/a Saltwater Cowboys, et al., Defendants.
Decision Date18 February 2016

164 F.Supp.3d 1344

David Kubiak, individually and on behalf of all other similarly situated employees, et al., Plaintiffs,
v.
S.W. Cowboy, Inc., a Florida Corporation, d/b/a Saltwater Cowboys, et al., Defendants.

Case No. 3:12-cv-1306-J-34JRK

United States District Court, M.D. Florida, Jacksonville Division .

Signed February 18, 2016


164 F.Supp.3d 1346

Benjamin L. Williams, Law Offices of Benjamin Lee Williams, Ponte Vedra Beach, FL, Mitchell L. Feldman, Feldman Law Group P.A., Tampa, FL, for Plaintiffs.

Kevin D. Johnson, Lakisha M. Kinsey-Sallis, Marquis W. Heilig, Thompson, Sizemore, Gonzalez & Hearing, PA, Tampa, FL for Defendants.

ORDER

MARCIA MORALES HOWARD, United States District Judge

THIS CAUSE is before the Court on (1) Defendants' Motion for Summary Judgment

164 F.Supp.3d 1347

(Doc. 165; Defendants' Motion), filed on October 30, 2015; and (2) Plaintiffs' Motion for Summary Judgment (Doc. 167; Plaintiffs' Motion), filed on October 30, 2015. On November 25, 2015, Defendants filed Defendants' Response in Opposition to Plaintiffs' Partial Motion for Summary Judgment (Doc. 173; Defendants' Response), and Plaintiffs filed Plaintiffs' Response in Opposition to Defendants' Motion for Summary Judgment (Dkt. 165) (Doc. 180; Plaintiffs' Response). Accordingly, this matter is ripe for review.

I. Background Facts1

Saltwater Cowboys and Creekside Dinery are seafood restaurants in St. Augustine, Florida.2 Doc. 79 (“Third Amended Complaint”) ¶¶ 46, 50; Doc. 86 (“Answer”) ¶¶ 46, 50. Plaintiffs all worked as servers at one or both of those restaurants between 2006 and 2013.3 At both restaurants, “front-of-the-house” managers supervise the servers. Saltwater Cowboys Depo. at 20; Creekside Dinery Depo. at 8, 10. Those managers are responsible for opening the restaurant; overseeing, hiring, firing, scheduling, directing, and releasing servers and other non-kitchen employees (including expediters,4 hosts/hostesses, and bussers); counting opening and closing money; and handling voids. Doc. 181-1 (deposition of Creekside Dinery manager Sloan Doucette; “Doucette Depo.”) at 52–53; Doc. 113 (deposition of Saltwater Cowboys manager Jennifer Bryant; “Bryant Depo.”) at 32–36. Kitchen managers oversee the kitchen and its staff and are responsible

164 F.Supp.3d 1348

for scheduling, supervising, directing, hiring, and firing “back-of-the-house” employees such as cooks and other kitchen staff. Saltwater Cowboys Depo. at 20; Creekside Dinery Depo. at 15, 18; Doc. 181-11 (deposition of Saltwater Cowboys kitchen manager Bryan Pannone; “Pannone Depo.”) at 28–29. Kitchen managers also assist in food preparation. Pannone Depo. at 54.

The restaurants required servers to contribute to a tip pool that included the bussers and bartenders. Saltwater Cowboys Depo. at 70; Creekside Dinery Depo. at 36. In compensating the servers, the restaurants took a “tip credit” against the restaurants' minimum-wage obligations based on a portion of the tips each server received.5 See Saltwater Cowboys Depo. at 29; Creekside Dinery Depo. at 24, 32; see also, e.g. , Doc. 100-2 at 1 (affidavit from Saltwater Cowboys server Lance Alexander explaining wages he received, including tip credit). At the end of every shift, each server would obtain a server checkout showing that server's sales, payments, number of items ordered, tips required to be paid into the busser/bartender tip pool, cash owed to the restaurant, and credit-card tips. Saltwater Cowboys Depo. at 30–31; Creekside Dinery Depo. at 67–68. Each server also completed a tip-allocation form and then checked out with a front-of-the-house manager. Saltwater Cowboys Depo. at 32–33, 36–37; Creekside Dinery Depo. at 42–43. The tip-allocation sheet contains a table with seven rows—one for each day of the week—and seven columns, which were headed “[charge] tips/[charge] sale”; “cash tips/cash sale”; “bar/bus”; “kitchen”; “expo”; “net tips”; and “date/initials.” See, e.g. , Doc. 183-19 (Tip Allocation Sheets from Saltwater Cowboys).

The servers at Fiddler's Green, a since-closed restaurant also owned and operated by the Owner Defendants, voted to tip the kitchen employees at a recommended rate of 25 cents per dinner. See Saltwater Cowboys Depo. at 66. This practice of tipping kitchen employees (reduced to a recommended 20 cents per dinner) carried over to Saltwater Cowboys and Creekside Dinery. See Doc. 100-3 (“Owners' Affidavits”) at 1–2, 4–5, 7–8, 10–11, 13–14, 26–27. The parties disagree as to whether contributions to the Kitchen Tip Pool were voluntary or mandatory. Defendants contend that participation in the Kitchen Tip Pool was voluntary. See id. They have presented 55 affidavits from servers who averred that they knew the Kitchen Tip Pool was voluntary. See Docs. 67, 100-2, 115, 117, 120–22 (servers' affidavits). In contrast, each named Plaintiff testified that he believed contributions to the pool were mandatory. See Crowling Depo. I at 39; Dillon Depo. I at 38–39; Farinos Depo. at 76–78; Harvey Depo. at 19–20; Doc. 105 Hoolahan Depo. at 28, 32; Keating Depo. I at 43–44, 46; Kubiak Depo. at 57–59, 62–65; Doc. 108 Little Depo. at 51, 54; Patterson Depo. at 30–33. Dillon, Farinos, Keating, Little, and Patterson also asserted that managers told them that the Kitchen Tip Pool was mandatory. See Dillon Depo. I at 39; Farinos Depo. at 77; Keating Depo. I at 44; Little Depo. at 56–58; Patterson Depo. at 35. And Hoolahan, Crowling, Little, and Patterson asserted that front-of-the-house managers would correct a server's kitchen-tip allocations

164 F.Supp.3d 1349

if the server failed to use the standard formula of 20 cents per entrée. See Hoolahan Depo. at 33–34; Doc. 176 (second deposition of Crowling; “Crowling Depo. II”) at 11–12; Little Depo. at 52–54; Patterson Depo. at 33–34. Saltwater Cowboys assistant manager Jessica Barnes-Turner stated that she did not know prior to December 2012 “if [contribution to the Kitchen Tip Pool] was mandatory or not.” Doc. 169 (deposition of Jessica Barnes-Turner; “Barnes-Turner Depo.”) at 58–59. Saltwater Cowboys assistant manager Melissa Wolfe stated that she was not told “one way or the other” whether she had a choice to contribute to the Kitchen Tip Pool. Doc. 181-6 (deposition of Melissa Wolfe; “Wolfe Depo.”) at 37–39.

After receiving contributions to the Kitchen Tip Pool each night, a front-of-the-house manager would put the tips in an envelope and give the envelope to a kitchen manager. Saltwater Cowboys Depo. at 39–40; Creekside Dinery Depo. at 84. Every week (at Saltwater Cowboys) or every other week (at Creekside Dinery), the kitchen manager would distribute the Kitchen Tip Pool money to kitchen employees. Saltwater Cowboys Depo. at 56–58; Creekside Dinery Depo. at 19. When a kitchen employee failed to come in for a shift or arrived significantly late, the kitchen manager sometimes would withhold or reduce that employee's share of the Kitchen Tip Pool. Doc. 86 (“Answer”) ¶¶ 26, 32, 41, 80; Pannone Depo. at 38; Doc. 181-9 (deposition of Creekside Dinery kitchen manager Kelvin Jackson; “Jackson Depo.”) at 30–31. While Plaintiffs were aware that tips collected for the kitchen went to the kitchen staff, they had differing understandings, if any, as to who distributed those funds and on what basis. See Doc. 101 Crowling Depo. I at 61–62; Crowling Depo. II at 32–33, 35–37; Doc. 175 (second deposition of Matt Dillon; “Dillon Depo. II”) at 16–17, 20; Keating Depo. I at 36–37; Doc. 174 (second deposition of Keating; “Keating Depo. II”) at 17–18; Farinos Depo. at 79; Harvey Depo. at 38–39; Kubiak Depo. at 69; Patterson Depo. at 36. Additionally, on four occasions between November 30, 2007, and February 1, 2013, the kitchen manager distributed less than the total collected for the kitchen tip pool to the kitchen employees. See Doc. 183 (showing that (1) during the week of October 10, 2008, kitchen employees received $62.10 less than the total contributed to the Kitchen Tip Pool; (2) during the week of October 2, 2009, kitchen employees received $83.51 less than the total contributed to the Kitchen Tip Pool; (3) during the week of July 9, 2010, kitchen employees received $158.60 less than the total contributed to the Kitchen Tip Pool; and (4) during the week of May 20, 2011, kitchen employees received $51.40 less than the total contributed to the Kitchen Tip Pool).6

On November 30, 2012, Kubiak filed this lawsuit against Saltwater Cowboys. Doc. 1. Crowling, Keating, and Patterson filed their consents to join the lawsuit on December 4, 2012. Doc. 3. Shortly after that, on January 17, 2013, the Owner Defendants held a meeting with the Saltwater Cowboys staff to discuss the lawsuit. Saltwater Cowboys Depo. at 148, 150–54. The Owner Defendants prepared remarks,

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which Singleton, as president, delivered.7 Id. at 195–200; see Doc. 185-2 (prepared remarks).

After the meeting, Singleton and Bryant met with Crowling and told him that the owners had discovered that Crowling had wrongfully taken a “double bump” from a customer. Bryant Depo. at 137, 139–44; Saltwater Cowboys Depo. at 181–88; Crowling Depo. I at 17–18. A double bump occurs when a server fails to inform a party that an automatic...

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