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Stokes v. Consolidated Wings Investment, LLC

United States District Court, S.D. Indiana, Indianapolis Division

September 30, 2016

KIMBERLY STOKES, on behalf of herself and other persons similarly situated, known and unknown, Plaintiff,
v.
CONSOLIDATED WINGS INVESTMENT, LLC, d/b/a BUFFALO WILD WINGS, Defendant.

          ENTRY ON DEFENDANT'S MOTION TO DISMISS

          RICHARD L. YOUNG, CHIEF JUDGE

         Plaintiff, 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.

         Defendant 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 Defendant's motion.

         I. Background

         A. Consolidated Wings Investment

         Defendant 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).

         Defendant 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).

         Servers 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).

         B. Kimberly Stokes

         Plaintiff 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. ¶ 18).

         Defendant 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. (Id.).

         II. Legal Standard

         Federal 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 (2007)).

         III. ...


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