United States District Court, S.D. Indiana, Indianapolis Division
KIMBERLY STOKES, on behalf of herself and other persons similarly situated, known and unknown, Plaintiff,
CONSOLIDATED WINGS INVESTMENT, LLC, d/b/a BUFFALO WILD WINGS, Defendant.
ENTRY ON DEFENDANT'S MOTION TO DISMISS
RICHARD L. YOUNG, CHIEF JUDGE
Kimberly Stokes, a former bartender and server at Buffalo
Wild Wings, filed this putative collective action asserting
that her employer failed to pay her minimum wage in violation
of the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 201 et seq. She alleges that
Defendant, Consolidated Wings Investment, LLC, paid her the
reduced wage for tipped employees ($2.13 per hour) and then
credited the tips she received from customers against its
obligation to pay the full minimum wage ($7.25 per hour).
Typically, such a practice is lawful. However, Plaintiff
contends that Defendant continued taking the tip credit in
circumstances when the FLSA plainly forbids it.
moves to dismiss Plaintiff's Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). For the reasons set
forth below, the court DENIES
Consolidated Wings Investment
owns and operates franchised Buffalo Wild Wings restaurants
in Indiana, including one at 6129 Crawfordsville Road,
Speedway, Indiana 46224. (Filing No. 1, Complaint
¶¶ 2, 13). Defendant compensates its servers and
bartenders pursuant to the tip-credit provisions of the FLSA.
(Id. ¶ 3). Defendant requires tipped employees
to reimburse it with funds from their tips for customer
walk-outs and cash drawer shortages. (Id. ¶ 5).
further requires its tipped employees to perform non-tipped
work each shift in addition to serving customers (i.e.,
tipped work). (Id. ¶ 23). Defendant maintains
checklists for servers and bartenders that identify certain
non-tipped duties those employees are required to perform.
(Id. ¶ 24). These non-tipped duties include
sweeping, mopping, vacuuming, washing glasses, and rolling
silverware. (Id. ¶ 7). Plaintiff asserts that
some of the tasks were related to her tipped occupation,
while some were not. (Id. ¶¶ 7-8). When
completing these tasks, employees do not interact with
customers and do not have the opportunity to earn tips.
(Id. ¶ 26).
and bartenders are paid sub-minimum, tip-credit wages while
completing non-tipped work. (Id. ¶ 34). In
other words, Defendant does not allow its tipped employees to
clock in at the full minimum wage rate when performing these
tasks. (Id.). Defendant does not track the amount of
time tipped employees spend performing non-tipped work, and
does not have a policy prohibiting excessive amounts of
non-tipped work. (Id. ¶¶ 29-30). Plaintiff
alleges that Defendant requires tipped employees to spend
more than twenty percent of their time each week doing
non-tipped work. (Id. ¶ 8).
worked as a server and bartender at the Speedway restaurant
between approximately August 2008 and February 2014.
(Id. ¶ 15). Defendant paid Plaintiff at a
sub-minimum, tip-credit wage. (Id. ¶ 16). While
Plaintiff was working as a server, Defendant required her to
reimburse it from her tips on two occasions in the last three
years when customers left the restaurant without paying for
their meals. (Id. ¶ 17). While Plaintiff was
working as a bartender, Defendant required her to reimburse
it from her tips on two occasions in the last three years
when the bar cash drawer had a shortage. (Id. ¶
also required Plaintiff to: (a) spend over twenty percent of
her work time in individual workweeks as a server and
bartender performing related non-tipped work, and (b) perform
unrelated non-tipped work that had no customer interaction
and did not generate tips. (Id. ¶ 19). These
related and unrelated duties collectively include: cleaning
garbage cans and video games, rolling clean silverware,
filling “sani” buckets, slicing lemons, sweeping,
mopping, brewing iced tea, and restocking the beer cooler.
Rule of Civil Procedure 12(b)(6) authorizes the court to
dismiss a complaint for “failure to state a claim upon
which relief can be granted.” “Dismissal is
appropriate under that rule when the factual allegations in
the complaint, accepted as true, do not state a facially
plausible claim for relief.” Hyson USA, Inc. v.
Hyson 2U, Ltd., 821 F.3d 935, 939 (7th Cir. 2016)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570