Sheehan v. Romulus Incorporated, No. 2:2014cv00464 - Document 33 (D. Ariz. 2015)

Court Description: ORDER denying with prejudice Plaintiff Crystal Sheehan's 24 Motion to Amend. ORDERED granting IHOP's 22 Motion for Summary Judgment. Plaintiff Sheehan's Complaint is terminated with prejudice. The Clerk of Court shall terminate CV-14-464-PHX-SMM and enter judgment for Defendant. Signed by Senior Judge Stephen M McNamee on 3/30/2015.(LFIG)
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Sheehan v. Romulus Incorporated 1 Doc. 33 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jesus Analy Benitez Montijo, 10 Plaintiff, 11 vs. 12 Romulus Inc., d/b/a IHOP, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) No. CV-14-264-PHX-SMM ) ) ) ) ) ) ) ) ) ) No. CV-14-265-PHX-SMM ) ) ) ) ) ) ) ) ) ) ) No. CV-14-464-PHX-SMM AMENDED MEMORANDUM OF DECISION AND ORDER 15 Sydney Colunga, 16 Plaintiff, 17 vs. 18 Romulus Inc., d/b/a IHOP, 19 Defendant. 20 21 Crystal Sheehan, 22 Plaintiff, 23 vs. 24 Romulus Inc., d/b/a IHOP, 25 Defendant. 26 MEMORANDUM OF DECISION AND ORDER MEMORANDUM OF DECISON AND ORDER 27 28 /// Dockets.Justia.com 1 Multiple civil actions have been filed under the Fair Labor Standards Act (“FLSA”) 2 raising similar legal issues in this District. In the interest of judicial economy, all twenty- 3 eight of these related FLSA cases were transferred to this Court for the purpose of managing, 4 administrating, and resolving them. (See Montijo, Doc. 22; Colunga, Doc. 20; and Sheehan, 5 Doc. 18.) In these transferred civil actions, all of the plaintiffs have the same counsel of 6 record prosecuting their complaints. 7 For the purpose of resolving similar motions to amend and similar motions for partial 8 or for summary judgment, the Court has combined the above three captioned cases against 9 Defendant Romulus Inc., d/b/a International House of Pancakes (“IHOP”). The Court will 10 deny leave to amend on Plaintiffs’ Counts 1 and 2, rule in favor of IHOP on their motions 11 for partial or for summary judgment on Counts 1 and 2, and deny Montijo’s motion for 12 partial summary judgment on Count 2. 13 BACKGROUND 14 In each of the above-captioned three related cases, Plaintiffs filed complaints against 15 IHOP. (See Montijo, Doc. 1; Colunga, Doc. 1; and Sheehan, Doc. 1.) In Montijo, Plaintiff 16 then filed a First Amended Complaint (“FAC”). (Montijo, Doc. 23.) Colunga’s complaint, 17 Sheehan’s complaint, and Montijo’s FAC all raise two basic allegations in regard to the 18 minimum wage provisions of the FLSA.1 (See Montijo, Doc. 23; Colunga, Doc. 1; and 19 Sheehan, Doc. 1.) They allege an FLSA minimum wage violation because IHOP required 20 them to perform non-tipped duties related to their tipped server occupation in excess of 20% 21 of their working time per shift yet paid at the reduced tip credit rate for performing those 22 duties. (Id.) Plaintiffs’ examples of non-tipped duties related to their tipped server 23 occupation included the following: 24 preparatory and workplace maintenance tasks such as maintaining “backups,” 25 1 26 27 28 Montijo’s FAC broke down the two basic allegations that are raised in Colunga’s and Sheehan’s complaints and brought them as two separate counts. For ease of reference, in all of the Plaintiffs’ complaints, the Court will collectively refer to these two basic allegations as Counts 1 and 2 even though not separately denominated as such by Colunga or Sheehan. Montijo’s FAC also asserts a third count for alleged unpaid wages. -2- 1 4 restocking supplies, stocking ice, sweeping floors, stocking food/condiments, brewing tea, brewing coffee, running food to tables for other servers, wiping down/washing trays, stocking lemonade mix, cleaning soft drink dispenser nozzles, replacing syrup for the soda machine, stocking to-go supplies, cutting/stocking lemons, washing plates/glasses/silverware, polishing glassware, maintaining and stocking the salad bar, restocking the beverage line, cleaning and organizing the condiment station, and rolling silverware. 5 (See, e.g., Montijo, Doc. 23 at 5.) Plaintiffs further allege that they were engaged in working 6 dual jobs for IHOP yet IHOP only paying them at the reduced tip credit rate for performing 7 a non-tipped occupation. (Id.) Plaintiffs allege that they performed non-tipped non-related 8 duties, such as: 2 3 9 10 11 12 13 taking out trash, scrubbing walls, deep cleaning the pass bar, deep cleaning the floors, removing booths and cleaning behind and around them, sweeping carpet throughout the entire restaurant, organizing and cleaning and deep cleaning booster seats and high chairs, mopping, rolling out rugs from the hallways and front lobby to sweep clean the rugs and hard floors, cleaning and deep cleaning both restrooms, deep cleaning chair bottoms and legs, cleaning vents, cleaning windows, and dusting. (Id. at 7.) 14 In a previous Order addressing similar FLSA arguments, for the purpose of resolving 15 seven motions to dismiss, the Court combined six (6) plaintiffs suing P.F. Chang China 16 Bistro, Inc. and one plaintiff’s complaint against Arriba Mexican Grill. The Court granted 17 defendants’ motions and dismissed without prejudice the plaintiffs’ minimum wage claims 18 brought under the FLSA. (See, e.g., Schaefer, No. CV 14-185-PHX-SMM, Doc. 31.) The 19 Court also provided the plaintiffs with the opportunity to move the Court for leave to amend 20 their complaint. (See id.) Finally, the Court forwarded a copy of its Order to all of the 21 parties in the remaining transferred cases. (Id.) 22 Plaintiffs’ Motions for Leave to Amend 23 Following this Court’s Order in Schaefer, all three Plaintiffs moved for leave to 24 amend their complaints or FAC. (See Montijo, Doc. 28; Colunga, Doc. 30; and Sheehan, 25 Doc. 24.)2 The Court has combined the above-captioned three related cases for the purpose 26 27 28 2 All three Plaintiffs’ motions omit an accompanying memorandum setting forth the points and authorities relied upon in support of their motion for leave to amend their complaint or FAC. In our District’s Local Rules, LR Civ 7.2(b) states: “Unless otherwise -3- 1 of resolving Plaintiffs’ similar motions for leave to amend, and subsequent related motions. 2 The Court has reviewed all of Plaintiffs’ motions for leave to amend. (See Montijo, Doc. 28; 3 Colunga, Doc. 30; and Sheehan, Doc. 24.) In Plaintiffs’ pending motions for leave to amend, 4 Montijo’s proposed SAC and Colunga’s and Sheehan’s proposed FAC, they all assert the 5 same first two counts. (Id.) In Count 1, alleging a violation of the FLSA’s minimum wage 6 provision, they assert a dual jobs claim alleging that they performed non-tipped labor related 7 to their tipped server occupation in excess of 20% of their workweek duties, including: 8 9 10 11 maintaining “backups;” sweeping carpet; cleaning sugar caddies, syrups, and salt and pepper shakers; washing cups in the dishwasher; re-stocking the beverage line; cleaning and maintaining the salad bar; cleaning and organizing the condiment station; cleaning and organizing the booster seats and high chairs; cleaning and maintaining the pass bar; moving carpets and sweeping and mopping floors; cleaning and restocking the restrooms; cleaning walls; cleaning booths; rolling silverware; completing the side work chart; cleaning windows; and cleaning, organizing, and re-stocking the to-go station. 12 (See, e.g., Montijo, Doc. 28-1 at 5.) 13 In Count 2, also alleging a violation of the FLSA’s minimum wage provision, they 14 assert a dual jobs claim asserting that they were performing non-tipped labor unrelated to 15 their tipped occupation, including “sweeping carpet; cleaning and organizing the booster 16 seats and high chairs; moving carpets and sweeping and mopping floors; cleaning and 17 restocking the restrooms; cleaning walls; cleaning booths; completing the side work chart; 18 and cleaning windows.” (Id. at 16.) 19 Both Montijo and Colunga assert a third count for unpaid wages under the FLSA in 20 their proposed amended complaints. (See Montijo, Doc. 28-1, Colunga, Doc. 24-1.) 21 IHOP opposes amendment of Counts 1 and 2 contending that the proposed FAC and 22 SAC fail to state a minimum wage violation under the FLSA, and therefore granting 23 amendment to file Plaintiffs’ proposed complaints would be futile. (Montijo, Doc. 33; 24 Colunga, Doc. 34; and Sheehan, Doc. 27.) IHOP contends that this is not a dual job situation 25 26 27 28 ordered by the court, upon any motion, the moving party shall serve and file with the motion’s papers a memorandum setting forth the points and authorities relied upon in support of the motion.” All three Plaintiffs failed to follow this District’s Local Rules. -4- 1 under the Department of Labor (“DOL”) regulations, but rather a situation in which a 2 server—a tipped employee—performed tasks generally assigned to the server occupation at 3 IHOP’s restaurants. (See, e.g., Montijo, Doc. 33 at 5.) 4 Plaintiffs replied in support. (Montijo, Doc. 34; Colunga, Doc. 35; and Sheehan, Doc. 5 28.) Even though they were tipped employees, Plaintiffs assert that they were required to 6 perform tipped labor and non-tipped labor related to their server occupation while being paid 7 the tip credit rate and exceeding 20% of their workweek duties. (Id.) Plaintiffs therefore 8 claim that they were working dual jobs yet not properly paid minimum wage for work 9 performed outside the server occupation, thus violating the FLSA. (Id.) Plaintiffs further 10 maintain that their performance of non-tipped labor unrelated to their tipped occupation also 11 states a dual jobs FLSA minimum wage violation. (Id.) For both dual jobs Counts, they rely 12 on the DOL regulation defining when you are a dual job employee, 29 C.F.R. § 531.56(e), 13 as interpreted by the DOL Field Operations Handbook, sub-regulation § 30d00(e), which 14 asserts that you become a dual jobs employee when a substantial part of your duties, or 20%, 15 is performed on non-tipped duties. Plaintiffs assert that deference is owed to DOL’s sub- 16 regulation, citing Auer v. Robbins, 519 U.S. 452, 461-62 (1997). 17 Relevant Undisputed Facts 18 1. All of the Plaintiffs were servers working for IHOP and assigned generally to the 19 graveyard shifts. For the Plaintiffs their graveyard shifts start times varied between 8 p.m. 20 and 11 p.m and ending between 5 a.m and 7 a.m. (Montijo, Docs. 32 at 2, 32-1 at 18-43; 21 Colunga, Docs. 33 at 1-2, 33-1 at 21-50; Sheehan, Docs. 26 at 1-2, 26-1 at 32-69.) 22 2. Upon hire at IHOP, all Plaintiffs were employed under IHOP’s Server Job 23 Description and received training materials for performing the Server position, which 24 included performance of required side work as specified. (Montijo, Docs. 30 at 2, 30-1 at 25 32-70; Colunga, Docs. 29 at 1-2, 29-1 at 31-68; Sheehan, Docs. 23 at 1-2, 23-1 at 19-56.) 26 3. Plaintiffs as tipped employees under the FLSA were paid the Arizona minimum 27 wage of $7.80 an hour, which was higher than the federal minimum wage of $7.25 an hour. 28 IHOP paid tipped employees based on the Arizona tip credit of $3.00 an hour, higher than -5- 1 the federal tip credit of $2.13 an hour. (Montijo, Docs. 30 at 2, 30-1 at 8; Colunga, Docs. 29 2 at 2, 29-1 at 8; Sheehan, Docs. 23 at 1, 23-1 at 3.) 3 4. All Plaintiffs received minimum wage payments for the workweeks in which they 4 were employed by IHOP. (Montijo, Docs. 30 at 2, 30-1 at 8; Colunga, Docs. 29 at 2, 29-1 5 at 8; Sheehan, Docs. 23 at 1, 23-1 at 3.) 6 5. As servers, Plaintiffs performed various duties, including taking orders from 7 customers, responding to customer questions or requests, bringing food to customers, 8 ensuring that their drinks were refilled, and otherwise ensuring a superior customer 9 experience, sweeping or cleaning floors in the dining area, lobby, or bathroom, cleaning and 10 filling condiment dispensers, rolling silverware, restocking the beverage line, cleaning and 11 organizing the condiment station, cleaning walls, cleaning bathrooms, cleaning and 12 organizing high chairs and booster seats, and restocking the to go station. (See, e.g., Montijo, 13 Docs. 30 at 2 ¶ 5, 32 at 2.) 14 6. In their positions as servers on the graveyard shift, IHOP required Plaintiffs to 15 regularly and consistently perform tasks that included sweeping the carpet; clean sugar 16 caddies, syrups, and salt and pepper shakers; wash cups in the dishwasher; re-stock the 17 beverage line; clean and maintain the salad bar; clean and organize the condiment station; 18 clean and maintain the pass bar; wash coffee pots and place them on tables; sweep and mop 19 floors; roll silverware; clean and organize high chairs and booster seats; clean restrooms; 20 scrub walls; and perform other duties as assigned. See, e.g., Montijo, Docs. 31 at 3-4, 30-1 21 at 21-25.) 22 7. In Montijo’s and Colunga’s answers to interrogatories, they estimated the time they 23 spent on their various side duties. (Montijo, Doc. 30-1 at 25-26; Colunga, Doc. 29-1 at 25- 24 26.) They estimated that they spent approximately 10 to 20 minutes each shift cleaning and 25 restocking restrooms, and approximately 45 minutes to an hour deep cleaning the restrooms, 26 which only occurred 3 or 4 times during their time of employment with IHOP (Montijo–7 27 and ½ months, Colunga, 1 year, 3 months, Sheehan, 1 year, 7 months). (Id. at 26.) In 28 Sheehan, Plaintiff did not provide specific time estimates regarding her performing the side -6- 1 duties. (Sheehan, Doc. 23-1 at 14.) 2 IHOP’s Motions for Summary Judgment 3 At the same time that Plaintiffs moved for leave to amend and lodged proposed 4 amended complaints, IHOP moved for partial summary judgment in Montijo on Counts 1 and 5 2, and for summary judgment in both Colunga and Sheehan, with supporting statements of 6 facts. (Montijo, Docs. 29, 30; Colunga, Doc. 28, 29; and Sheehan, Doc. 22, 23.) Plaintiffs 7 have responded and IHOP has replied. (Montijo, Docs. 31, 32 and 35, 36; Colunga, Docs. 8 32, 33, and 36, 37; and Sheehan, Docs. 25, 26 and 29, 30.) Subsequently, in Montijo, 9 Plaintiff moved for partial summary judgment on Count 2. (Docs. 37, 38.) IHOP has 10 responded and Plaintiff has replied. (Docs. 39-41.) 11 The Court finds that IHOP’s motion for partial summary judgment in Montijo on 12 Counts 1 and 2, and for summary judgment in Colunga and Sheehan are dispositive of the 13 motions pending in this matter. The Court will grant IHOP’s motion for partial summary 14 judgment on Counts 1 and 2 in Montijo, and deny Montijo’s motion for partial summary 15 judgment on Count 2. The Court will grant IHOP’s motion for summary judgment on Counts 16 1 and 2 in Colunga; the Court will grant Colunga’s motion to amend in part allowing 17 Colunga to add her unpaid wage claim to her complaint. 18 motion for summary judgment in Sheehan and terminate that case. Based on the reasoning 19 set forth by the Court, the Court will deny Plaintiffs’ motions for leave to file amended 20 complaints as futile, except as to adding Colunga’s unpaid wage claim, which will proceed. 21 STANDARD OF REVIEW The Court will grant IHOP’s 22 FLSA 23 Under the FLSA, employers must pay employees the federal minimum wage “who 24 in any workweek is engaged in commerce or in the production of goods for commerce, or is 25 employed in an enterprise engaged in commerce or in the production of goods for 26 commerce,” according to the statutory schedule of the minimum hourly wage. 29 U.S.C. § 27 206(a) (2012). In 2007, Congress scheduled the federal minimum wage to increase to $7.25 28 an hour by July 2009. See Fair Minimum Wage Act of 2007, Pub.L. No. 110–28, § 8102(a), -7- 1 121 Stat. 112, 188 (raising the minimum wage to $5.85 per hour, effective July 24, 2007, to 2 $6.55 per hour, effective July 24, 2008, and to $7.25 per hour, effective July 24, 2009). 3 Historically, before 1966, the FLSA did not generally apply to employees in 4 restaurants and hotels. As part of a legislative compromise struck in extending the coverage 5 of the FLSA to these industries for the first time, Congress enacted a “tip credit” provision, 6 to accommodate in part the long-standing practice in these industries whereby workers 7 received most or even all of their income from customer tips. See Pub. L. No. 89-601, §§ 8 101(a), 201(a), 80 Stat. 830, 833 (1966). Legislative history clearly demonstrates that 9 Congress’s intent was not to disrupt the restaurant industry’s “existing practices with regard 10 to tips.” See S. Rep. No. 89-1487, reprinted in 1966 U.S.C.C.A.N. 3002, 3014. 11 From introduction of the tip credit provisions in 1966 through 1996, Congress set the 12 amounts for the minimum employer cash wage and tip credit as a percentage of the minimum 13 wage, ranging from 40% to 60%. The 1996 FLSA amendments changed the tip credit 14 provisions to set the employer’s statutory minimum cash wage obligation to a dollar amount 15 ($2.13 per hour), rather than a percentage of the minimum wage. See Pub. L. No. 104-188, 16 § 2105, 110 Stat. 1755, 1928-29.3 The maximum tip credit thereafter became the difference 17 between $2.13 and the federal minimum wage. Id. Thus, the tip credit provision of the 18 FLSA, § 203(m), allows employers to pay tipped employees $2.13 per hour if the employees’ 19 tips suffice to fulfill his or her minimum wage for the workweek.4 29 U.S.C. § 203(m). 20 21 22 23 24 25 3 Prior to the 1996 amendment, employers were required to pay tipped employees a cash wage “by an amount determined by the employer, but not an amount in excess of . . . 50 percent of the applicable minimum wage rate after March 31, 1991.” 29 U.S.C. § 203(m) (1994). The minimum wage rate after March 31, 1991 and prior to the 1996 amendments was $4.25 an hour. Thus, prior to the 1996 amendments, employers were required to pay a cash wage of at least $2.13. ($4.25 an hour x 0.50 = $2.125 = $2.13 rounded up). 4 26 27 28 Arizona has enacted a higher tip credit for employees such that the difference between the wage specified in paragraph (1) of 29 U.S.C. § 203(m) and the wage in effect under § 206(a)(1) is effectively $3.00. A.R.S. § 23-363(C). Thus, Arizona allows employers to take a maximum tip credit of $3.00 against its minimum wage obligations to tipped employees of $7.80 per hour. -8- 1 2 3 4 5 6 Specifically, § 203(m) states: In determining the wage an employer is required to pay a tipped employee, the amount paid such employee by the employee’s employer shall be an amount equal to— (1) the cash wage paid such employee which for purposes of such determination shall be not less than the cash wage required to be paid such an employee on August 20, 1996 [i.e., $2.13 per hour]; and 7 (2) an additional amount on account of the tips received by such employee which amount is equal to the difference between the wage specified in paragraph (1) and the wage in effect under section 206(a)(1) of this title. 8 29 U.S.C. § 203(m). Thus, an employer may use a tip credit to determine the wage of a 9 tipped employee if it: (1) pays a cash wage of at least $2.13 per hour; (2) informs its 10 employees of the FLSA’s tip credit provisions; (3) permits its employees to retain all their 11 tips (except for permissible tip pooling); and (4) ensures that the cash wage plus the tip credit 12 equal the minimum wage for the forty-hour workweek. See Roberts v. Apple Sauce, Inc., 13 945 F. Supp.2d 995, 1000 (N.D. Ind. 2013). 14 Pursuant to 29 C.F.R. § 531.56(d), “[m]ore than $30 a month in tips customarily and 15 regularly received by the employee is a minimum standard that must be met before any wage 16 credit for tips is determined under [29 U.S.C. § 203(m)].” Further, 29 C.F.R. § 516.28, 17 requires that an employer keep separate records for tipped and non-tipped occupations. 18 Generally, employers are required to report on an employee W-2, (1) the sum of the hourly 19 wage paid, (2) the cash tips reported by the employee on Form 4070, and (3) the amount 20 shown by the records to have been paid to the employee as charge tips. See Nat’l Restaurant 21 Assoc. v. Simon, 411 F. Supp. 993, 994 (D. D.C. 1976). In no event, however, is an 22 employee to receive less than the minimum wage per workweek. 23 Summary Judgment 24 A court must grant summary judgment if the pleadings and supporting documents, 25 viewed in the light most favorable to the nonmoving party, show “that there is no genuine 26 issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. 27 R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Jesinger v. 28 Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law determines -9- 1 which facts are material. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); see also 2 Jesinger, 24 F.3d at 1130. “Only disputes over facts that might affect the outcome of the suit 3 under the governing law will properly preclude the entry of summary judgment.” Anderson, 4 477 U.S. at 248. The dispute must also be genuine, that is, the evidence must be “such that 5 a reasonable jury could return a verdict for the nonmoving party.” Id.; see Jesinger, 24 F.3d 6 at 1130. 7 A principal purpose of summary judgment is “to isolate and dispose of factually 8 unsupported claims.” Celotex, 477 U.S. at 323-24. Summary judgment is appropriate 9 against a party who “fails to make a showing sufficient to establish the existence of an 10 element essential to that party’s case, and on which that party will bear the burden of proof 11 at trial.” Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 12 1994). The moving party need not disprove matters on which the opponent has the burden 13 of proof at trial. See Celotex, 477 U.S. at 323. The party opposing summary judgment may 14 not rest upon the mere allegations or denials of the party’s pleadings, but must set forth 15 “specific facts showing that there is a genuine issue for trial.” See Matsushita Elec. Indus. 16 Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e) (1963) 17 (amended 2010)) ; Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). 18 The non-movant’s bare assertions, standing alone, are insufficient to create a material issue 19 of fact and defeat a motion for summary judgment. Anderson, 477 U.S. at 247–48. 20 Leave to Amend 21 Leave to amend should be freely given when justice so requires. See Fed. R. Civ. P. 22 15(a)(2). Leave to amend may be denied where there is “undue delay, bad faith or dilatory 23 motive on the part of the movant, repeated failure to cure deficiencies by amendments 24 previously allowed, undue prejudice to the opposing party by virtue of allowance of the 25 amendment, [or] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). The 26 Ninth Circuit Court of Appeals has summarized these factors to include the following: (1) 27 undue delay; (2) bad faith; (3) prejudice to the opponent; and (4) futility of amendment. 28 Loehr v. Ventura County Cmty. Coll. Dist., 743 F.2d 1310, 1319 (9th Cir. 1984). Granting - 10 - 1 or denial of leave to amend rests in the sound discretion of the trial court. Swanson v. United 2 States Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996). Despite the policy favoring 3 amendment under Rule 15, leave to amend may be denied if the proposed amendment is 4 futile or would be subject to dismissal. Saul v. United States, 928 F.2d 829, 843 (9th Cir. 5 1991). 6 DISCUSSION 7 Plaintiffs’ Count 1 8 In Count 1, Plaintiffs allege that as servers for IHOP they spent more than 20% of 9 their time performing non-tipped labor. As servers, Plaintiffs alleged that they performed the 10 11 12 13 14 following duties: preparatory and workplace maintenance tasks such as maintaining “backups,” restocking supplies, stocking ice, sweeping floors, stocking food/condiments, brewing tea, brewing coffee, running food to tables for other servers, wiping down/washing trays, stocking lemonade mix, cleaning soft drink dispenser nozzles, replacing syrup for the soda machine, stocking to-go supplies, cutting/stocking lemons, washing plates/glasses/silverware, polishing glassware, maintaining and stocking the salad bar, restocking the beverage line, cleaning and organizing the condiment station, and rolling silverware. 15 (See, e.g., Montijo, Doc. 30 at 2.) Plaintiffs assert that because they spent more that 20% of 16 their time performing side duties–non-tipped duties–they were entitled to the full hourly 17 minimum wage without IHOP taking a tip credit for the hours they spent performing side 18 work. (Id., Doc. 31.) Because they spent more than 20% of their time performing side 19 duties, they claim that they were working dual jobs yet not properly paid minimum wage for 20 work performed outside the server occupation, thus violating the FLSA. (Id.) Plaintiffs rely 21 on the DOL regulation defining when you are a dual job employee, 29 C.F.R. § 531.56(e), 22 as interpreted by the DOL Field Operations Handbook, sub-regulation § 30d00(e),5 which 23 24 25 26 27 28 5 The DOL sub-regulation, U.S. Dept. of Labor, Wage and Hour Division, Field Operations Handbook, § 30d00(e) (1988), provides, as follows: [C.F.R. §] 531.56(e) permits the taking of the tip credit for time spent in duties related to the tipped occupation, even though such duties are not by themselves directed toward producing tips (i.e., maintenance and preparatory or closing activities). For example a waiter/waitress, who spends some time cleaning and - 11 - 1 asserts that you become a dual jobs employee when a substantial part of your duties, or 20%, 2 is performed on non-tipped duties. 3 IHOP contends that Plaintiffs are tipped employees and that pursuant to the FLSA it 4 is entitled to take a tip credit for wages paid to its servers on a workweek basis. (See, e.g., 5 Montijo, Doc. 29.) Therefore, even if Plaintiffs spent more that 20% of their workweek time 6 performing side work, they are not entitled to additional monies for the hours they spent 7 performing side work. (Id.) 8 Based on 29 U.S.C. § 206(a) and 29 C.F.R. §§ 531.51, 531.56(e), IHOP contends that 9 Count 1 is subject to dismissal. (Id.) IHOP maintains that the DOL regulation specifically 10 provides that servers perform incidental duties in addition to their normal duties as a server. 11 (Id. (citing C.F.R. § 531.56(e).) IHOP contends that there is no FLSA violation because it 12 is undisputed that Plaintiffs are tipped employees and that IHOP always paid them the higher 13 Arizona minimum wage for all of their workweeks as IHOP employee. (Montijo, Docs. 30 14 at 2, 30-1 at 8; Colunga, Docs. 29 at 2, 29-1 at 8; Sheehan, Docs. 23 at 1, 23-1 at 3.) 15 No Minimum Wage Violation 16 The Court finds that Plaintiffs’ allegations regarding the DOL sub-regulations’ 20% 17 rule fails to state a minimum wage claim under the FLSA. The provisions of the FLSA 18 govern the basis for asserting a claimed violation of federal minimum wage. The Supreme 19 Court has emphasized the importance of companies paying an employee’s minimum wage 20 on a weekly basis. See Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707 (1945) (stating that 21 22 23 24 25 26 27 28 setting tables making coffee, and occasionally washing dishes or glasses may continue to be engaged in a tipped occupation even though these duties are not tip producing, provided such duties are incidental to the regular duties of the sever (waiter/waitress) and are generally assigned to the servers. However, where the facts indicate that specific employees are routinely assigned to maintenance, or that tipped employees spend a substantial amount of time (in excess of 20 percent) performing general preparation work or maintenance, no tip credit may be taken for the time spent in such duties. - 12 - 1 “employees receiving less than the statutory minimum are not likely to have sufficient 2 resources to maintain their efficiency and well-being”); see also Barrentine v. Arkansas-Best 3 Freight System, Inc., 450 U.S. 728, 739 (1981). Under 29 U.S.C. § 206, the FLSA requires 4 that for every workweek “every employer shall pay to each of [its] employees,” the federal 5 minimum wage, except for tipped employees, who receive $2.13 an hour, with the rest of 6 their federal minimum wage coming from customer tips. See 29 U.S.C. § 206(a)(1), § 7 203(m), and § 203(t). Thus, under § 203(m)’s tip credit, employers may pay tipped 8 employees at an hourly wage below the minimum wage, provided that for the workweek the 9 hourly wage and the employees’ tips, taken together are at least equivalent to the federal 10 minimum wage, which in 2012 and 2013 was $7.25 an hour. 11 The Supreme Court has also made it clear that an employment practice does not 12 violate the FLSA unless the FLSA prohibits it. See Christensen v. Harris Cnty., 529 U.S. 13 576, 588 (2000). The FLSA creates a private right of action against any employer who 14 violates § 206 (the minimum wage requirement) or § 207 (the overtime compensation 15 requirement). See 29 U.S.C. § 216(b). Section 216(b) permits employees to recover from 16 the employer “the amount of their unpaid minimum wages, or their unpaid overtime 17 compensation.” Id. 18 The Court finds that whether Plaintiffs are able to state a FLSA minimum wage 19 violation depends on the total pay for the workweek divided by the total number of hours 20 worked in that workweek. This “workweek” concept is well-supported in the caselaw, 21 starting with the seminal case of United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 22 487 (2d Cir. 1961). In Klinghoffer, employees who had not been paid for certain hours 23 worked claimed a violation of the FLSA’s minimum wage provision. The Klinghoffer court 24 found that: 25 26 [i]f the total wage paid to each [employee] in this case during any given week is divided by the total time he worked that week, the resulting average hourly wage exceeds [the minimum wage required by the FLSA]. We believe this is all that is necessary to meet the requirements of 206(a). 27 Id. at 490. The Ninth Circuit has followed the “workweek” concept established in 28 - 13 - 1 Klinghoffer for FLSA minimum wage violations. See Adair v. City of Kirkland, 185 F.3d 2 1055, 1063 (9th Cir. 1999) (stating that “The district court properly rejected any minimum 3 wage claim the officers might have brought by finding that their salary, when averaged 4 across their total time worked, still paid them above the minimum wage.”); accord Hensley 5 v. MacMillan Bloedel Containers, Inc., 786 F.2d 353, 357 (8th Cir. 1986); Dove v. Coupe, 6 759 F.2d 167, 172 (D.C. Cir. 1985); Blankenship v. Thurston Motor Lines, 415 F.2d 1193, 7 1198 (4th Cir. 1969). While § 206 of the FLSA speaks of an hourly wage, an employer’s 8 failure to compensate an employee for particular hours worked does not necessarily violate 9 the minimum wage provision. See Dove, 759 F.2d at 171. That is because the workweek as 10 a whole, not each individual hour within the workweek, determines whether an employer has 11 complied with § 206(a). Id.; see 29 C.F.R. § 776.4(a) (“The workweek is to be taken as the 12 standard in determining the applicability of the Act.”). Thus, no minimum wage violation 13 occurs so long as the employer’s total wage paid to an employee in any given workweek 14 divided by the total hours worked in the workweek equals or exceeds the minimum wage 15 rate. See Adair, 185 F.3d at 1062 n.6. 16 Even though Plaintiffs may allege in conclusory fashion that they were paid less than 17 minimum wage, their complaints pertain to examples of non-tipped tasks (side work) that 18 IHOP asked them to perform that were related to their occupation as a server. (See Montijo, 19 Doc. 23; Colunga, Doc. 1; and Sheehan, Doc. 1.) Such allegations do not state a minimum 20 wage claim since the pleading never alleges that during any particular workweek, IHOP paid 21 them less than the Arizona minimum wage. See Adair, 185 F.3d at 1062. FLSA minimum 22 wage claims fail where the aggregate wages for a workweek, “when averaged across the[] 23 total time worked,” is equal to or in excess of the minimum wage. Id. at 1063. Thus, 24 regardless of the frequency with which non-tipped work was assigned, no minimum wage 25 claim is stated against IHOP unless Plaintiffs’ average wage for the workweek, including 26 tips, fell below the minimum wage. In this case, Plaintiffs do not allege that IHOP did not 27 pay them the minimum wage for a particular workweek; therefore Plaintiffs’ allegations in 28 Count 1 are subject to dismissal. - 14 - 1 Even though the Court finds that Count 1 fails to state an FLSA minimum wage claim 2 as discussed, the Court will go on to discuss Plaintiffs’ argument that the DOL sub- 3 regulation, § 30d00(e), limits the amount of related duties a tipped employee can perform, 4 and that if a tipped employee spends a substantial amount of time, or more than 20% of their 5 workweek engaged in non-tipping duties, they must be paid the full minimum wage for their 6 time spent performing the non-tipped work. In support, Plaintiffs rely on Fast v. Applebee’s 7 Int’l, Inc., 638 F.3d 872 (8th Cir. 2011) and Crate v. Q’s Rest. Grp., No. CV 8:13-2549, 2014 8 U.S. Dist. Lexis 61360 (M.D. Fl. May 2, 2014). 9 Plaintiffs argues that that the controlling regulation, 29 C.F.R. § 531.56(e), is 10 ambiguous and therefore the Court should defer to DOL’s interpretive commentary found 11 in the sub-regulation, § 30d00(e), citing Auer, 519 U.S. at 461-62 (discussing deference in 12 the context of an agency’s interpretation of its own ambiguous regulation unless the 13 interpretation is plainly erroneous, inconsistent with the regulation, or does not reflect the 14 agency’s fair and considered judgment on the matter in question). 15 Neither Congress, the Supreme Court, nor the Ninth Circuit Court of Appeals has 16 recognized such a purported cause of action based on the sub-regulation. IHOP contends that 17 there was no violation of FLSA here because the sub-regulation is contrary to the statute’s 18 and the regulations’ clear pronouncement that employers are entitled to utilize the tip credit 19 for employees in tipped occupations. (See, e.g., Montijo Doc. 29; see also 29 U.S.C. § 20 203(m); 29 C.F.R. § 531.56.) Furthermore, 29 C.F.R. § 531.56(e) (Dual Jobs) allows for 21 tipped food service personnel to perform related and incidental tasks to their main occupation 22 without becoming a dual job employee. Because the controlling regulations are not 23 ambiguous, IHOP contends that the Court need not consider the DOL’s informal 24 commentary, especially when such commentary does not interpret the regulation but purports 25 to add additional requirements. (See, e.g., Montijo Doc. 29.) 26 The Court agrees with IHOP that the controlling regulations are not ambiguous; 27 therefore, the Court need not consider any DOL informal commentary. It is for the Court to 28 determine as a matter of law whether the applicable DOL regulations are ambiguous. See - 15 - 1 Christensen, 529 U.S. at 588 (finding that the regulation in that case was not ambiguous); 2 Saavedra v. Donavan, 700 F.2d 496, 500 (9th Cir. 1983) (stating that whether an ambiguity 3 exists is a question of law). 4 Additionally, the Court finds that the informal commentary is not persuasive because 5 it does not interpret the regulation but purports to add additional requirements which is the 6 province of Congress. Since only Congress is authorized to enact laws, administrative 7 executive agencies such as DOL violate the separation of powers principle when they enact 8 “laws” under the guise of providing informal commentary to a regulation. The sub- 9 regulation is not entitled to deference because DOL’s commentary was not arrived at by 10 formal adjudication or notice and comment rulemaking. Thus, giving deference to the sub- 11 regulation leads to the anomalous result of allowing agencies to side-step the onerous 12 rulemaking process by engaging in a two-step process. First, they publish unobjectionable, 13 vague regulations. Then, they simply issue opinions in various forms that ‘interpret’ the 14 regulation in a manner that may not have survived public notice and comment. Thus, the 15 sub-regulation usurps the legislative rulemaking function. 16 Under these facts, and as previously found, the Court agrees with IHOP that 17 regulation 531.56(e) is not ambiguous. The dual jobs regulatory framework identifies an 18 employee performing two or more entirely distinct, non-overlapping jobs. Plaintiffs were 19 not assigned two identifiable, separate occupations. 20 occupation, server. Section 531.56(e) specifically allows a server to engage in incidental 21 related duties. Thus, the server occupation inherently includes side work. The regulation 22 does not identify this “duties” dichotomy or cap incidental duties at 20%. Based on the 23 regulation, the Court need not identify the duties that Plaintiffs performed in their server 24 occupation and then classify some as related tipped duties and some as non-related 25 non-tipped duties, and then implement a different occupational standard for the non-tipped 26 duties as compared with their tipped occupation server duties. Plaintiffs was engaged in one 27 Moreover, even if the Court found § 531.56(e) ambiguous, the Ninth Circuit has 28 provided guidance regarding this Court’s inquiry into the issue of any deference due to the - 16 - 1 DOL sub-regulation. In Probert v. Family Centered Services of Alaska, Inc., 651 F.3d 1007, 2 1012 (9th Cir. 2011), the Ninth Circuit, relying on the authority of Christensen, 529 U.S. at 3 587, remarked that “it does not appear to us that the [DOL Wage and Hour Field Operations 4 Handbook] is a proper source of interpretive guidance [because] [t]he handbook itself says 5 that it ‘is not used as a device for establishing interpretative policy.’ [DOL Wage and Hour 6 Field Operations Handbook] Foreword at 1, available at http:// www. dol. gov/ whd/ FOH/ 7 index.htm .” Rather it is meant only to provide guidance for employees of the Wage and 8 Hour Division charged with enforcing the FLSA. See Barron v. Reich, 13 F.3d 1370, 1372 9 (9th Cir. 1994). DOL has never initiated an enforcement litigation against a restaurant based 10 upon the sub-regulation at issue. See Richardson v. Mountain Range Rest. LLC, No. CV 14- 11 1370, 2015 WL 1279237 *8 (D. Ariz. March 8, 2015). 12 Continuing, the Court further finds that the sub-regulation is neither persuasive nor 13 entitled to deference for several reasons. First, it is undisputed that the DOL’s Wage and 14 Hour Division in its opinion letters regarding the dual jobs regulation has inconsistently 15 provided guidance, first taking one position, then reversing course, reversing course again, 16 then withdrawing the original position. In a 1980 opinion letter, the DOL first opined that 17 duties performed by tipped employees after closing hours did not render them untipped 18 employees. These services included cleaning the salad bar, placing condiment crocks in the 19 cooler, cleaning the waitress station, stocking the waitress station, cleaning tables, filling salt 20 and pepper shakers, and vacuuming the dining room. See Dep’t of Labor Opinion Ltr., Wage 21 and Hour Div., 1980 WL 141336 (Mar. 28, 1980). Next, in a 1985 opinion letter, the DOL 22 opined that one out of five waiters who was required to report two hours early to perform 23 set-up work, in which it was held that the salad preparation set-up work was a job 24 traditionally performed by chefs, the DOL concluded that the waiter held “dual jobs” and was 25 entitled to full minimum wage for that portion of his shift. Dep’t of Labor Opinion Ltr., 26 Wage and Hour Div., 1985 DOLWH LEXIS 9 (Dec. 20, 1985). Next, in a 2009 opinion 27 letter, the DOL reversed course opining that “[w]e do not intend to place a limitation on the 28 amount of duties related to a tip-producing occupation that may be performed, so long as - 17 - 1 they are performed contemporaneously with direct customer-service duties . . .” The DOL 2 concluded that an employer could take a tip credit for an employee in the occupation of “bar 3 back,” even though the bar back employee spent none of his time waiting on customers. The 4 services performed by the bar back (bartender’s assistant) included restocking the bar, 5 cleaning the bar, organizing the bar, cleaning empty glasses, taking out the trash, and 6 cleaning the floor. Because the employee was in an occupation where he received more than 7 $30 a month in tips, he was a “tipped employee” and the employer could thus take a tip 8 credit. Dep’t of Labor Opinion Ltr., Wage and Hour Div., 2009 WL 649014 (Jan. 15, 2009). 9 Subsequently, less than two month later, in connection with a change in the executive 10 administration, the DOL withdrew the Jan. 15, 2009 letter. Dep’t of Labor Opinion Ltr., 11 Wage and Hour Div., 2009 DOLWH LEXIS 27 (Mar. 2, 2009). 12 By engaging in such an inconsistent approach in its opinions regarding the dual jobs 13 regulation, § 531.56(e), the DOL’s 1988 sub-regulation on the same issue is neither 14 persuasive nor entitled to deference. See Christopher v. SmithKline Beecham Corp., 132 S. 15 Ct. 2156, 2166-67 (2012) (affording no deference to the DOL’s interpretation of its own 16 regulations regarding the outside salesperson exemption because, among other things, the 17 DOL’s position had shifted over time); see also Thomas Jefferson Univ. v. Shalala, 512 U.S. 18 504, 515 (1994) (stating that an agency’s interpretation of a regulation that conflicts with a 19 prior interpretation is entitled to considerably less deference than a consistently held agency 20 view). 21 Next, the DOL sub-regulation does not interpret § 531.56(e) but arbitrarily adds 22 additional requirements to it, creating the rule that if incidental and related duties comprise 23 more than 20% of a server’s duties, then no tip credit may be taken for the server’s time spent 24 on such incidental or related duties. The court in Pellon v. Bus. Representation Int’l, Inc., 25 528 F. Supp. 2d 1306 (S.D. Fla. 2007), aff’d, 291 Fed. Appx. 310 (11th Cir. 2008), rejected 26 the sub-regulation’s approach as unworkable and inappropriate. The Court agrees with the 27 cogent findings made by the court in Pellon. In Pellon, plaintiffs were skycaps at the Miami 28 International Airport who argued that their employer was not allowed to take a tip credit - 18 - 1 because they were required to perform duties other than assisting travelers with their luggage. 2 The Pellon court found that the skycaps were in the tipped “occupation” of skycaps and that 3 any other duties they were required to perform were incidental to receiving tips. The court 4 found that skycaps were similar to servers. Like servers, the skycaps’ duties involved many 5 tasks that did not directly earn tips. The Pellon court found that the skycaps were not 6 performing dual occupations; rather they had one occupation in which they received more 7 than $30 a month in tips. The court rejected the sub-regulation’s 20% commentary, as 8 follows: 9 12 However, a determination whether 20% (or any other amount) of a skycap’s time is spent on non-tipped duties is infeasible. . . Permitting Plaintiffs to scrutinize every day minute by minute, attempt to differentiate what qualifies as tipped activity and what does not, and adjust their wage accordingly would create an exception that would threaten to swallow every rule governing (and allowing) for tip credit for employers. 13 528 F. Supp.2d at 1313-14. The Eleventh Circuit affirmed “on the basis of the district court’s 14 well-reasoned order.” See 291 Fed. Appx. 310 (11th Cir. 2008). The Court agrees with 15 Pellon and will not give deference to a policy having the net effect of allowing a server to do 16 nothing during slow periods at a restaurant or require the restaurant to pay the server 17 additional sums to help out around the restaurant. The law does not require that result. 10 11 18 Thus, to adopt the sub-regulation by giving it deference would require this Court to 19 set aside the constitutional principles of separation of powers, which the Court will not do. 20 Justice Thomas summarized this concern in his concurrence in Perez v. Mortgage Bankers 21 Assoc., Nos. 13-1041, 13-1052, 2015 WL 998535 *13 (U.S. March 9, 2015), where he stated 22 that giving deference to administrative interpretations of regulations requires judges to give 23 legal effect to the agency interpretations rather than to the regulations themselves. “Because 24 this doctrine effects a transfer of judicial power to an executive agency, it raises 25 constitutional concerns . . . [because it] undermines our obligation to provide a judicial check 26 on the other branches, and it subjects the regulated parties to precisely the abuses that the 27 Framers sought to prevent.” Id. 28 The Court finds that Plaintiffs’ allegations in Count 1 do not state an FLSA minimum - 19 - 1 wage violation claim. All Plaintiffs received their minimum wage payments for the 2 workweeks in which they were employed by IHOP. (Montijo, Docs. 30 at 2, 30-1 at 8; 3 Colunga, Docs. 29 at 2, 29-1 at 8; Sheehan, Docs. 23 at 1, 23-1 at 3.) The Court finds that 4 Plaintiffs were only performing one occupation at IHOP, the server position, not two 5 occupations. They are not entitled to a separate minimum wage payment from IHOP for 6 hours performed doing side work related to their server occupation. Montijo’s proposed 7 SAC and Colunga’s and Sheehan’s proposed FAC do not state an FLSA minimum wage 8 violation for Count 1. Under their proposed allegations for Count 1, the Court finds that they 9 were only performing one occupation, the server position, not two occupations. Therefore 10 allowing the filing of Plaintiffs’ proposed Count 1 would be futile, and will be denied. 11 Plaintiffs’ Count 2 12 With regard to Plaintiffs’ Count 2, the Court has already considered, discussed and 13 determined as a matter of law that 29 C.F.R. § 531.56(e) is not ambiguous as it relates to 14 servers performing incidental duties (side work) in addition to their normal duties as a server. 15 As with Count 1, Plaintiffs’ performance of the side work that is described in Count 2 does 16 not mean that they were performing the duties of a different job classification. Therefore, as 17 a matter of law, for the reasons previously discussed, the Court will find that Count 2 is also 18 without merit. 19 20 21 At issue in Count 2, Plaintiffs allege that they performed non-tipped non-related duties, such as: 24 taking out trash, scrubbing walls, deep cleaning the pass bar, deep cleaning the floors, removing booths and cleaning behind and around them, sweeping carpet throughout the entire restaurant, organizing and cleaning and deep cleaning booster seats and high chairs, mopping, rolling out rugs from the hallways and front lobby to sweep clean the rugs and hard floors, cleaning and deep cleaning both restrooms, deep cleaning chair bottoms and legs, cleaning vents, cleaning windows, and dusting. 25 (See, e.g., Montijo, Doc. 23 at 7.) Plaintiffs contend that the amount of IHOP’s required non- 26 related non-tipped duties took them out of the classification of server and therefore they 27 argue that they are entitled to minimum wage for their performance of those duties. (See, 28 e.g., Montijo, Doc. 31 at 3-4.) As graveyard servers, Plaintiffs state that generally they might 22 23 - 20 - 1 be the only non-kitchen employee present. (Id. at 4.)6 As such, the graveyard server would 2 generally be responsible for bussing all tables, hosting, and performing all cleaning, 3 preparation, and maintenance work. (Id.) According to Plaintiffs, the graveyard server was 4 also responsible for completing the entire “side work” chart, which in non-graveyard shifts 5 would be split among all servers. (Id.) Plaintiffs argue that they were in a position 6 particularly vulnerable to engaging in a non-tipped occupation given the fact that they were 7 in fact tipped employees. (Id.) 8 IHOP maintains that a server’s occupation involves side work, including but not 9 limited to the cleaning duties required for its graveyard servers. (See, e.g., Montijo, Doc. 35 10 at 2.) IHOP reiterates that under the FLSA and its regulations, a tip credit is permitted for 11 a tipped occupation; it is not based on tipped or nontipped duties. (Id.) IHOP objects to the 12 Plaintiffs’ suggestion that this Court parse their duties, classify them between tipped and 13 non-tipped, then further classify them between relating to the server position and not relating 14 to the server position. (Id.) According to IHOP, such a parsing of the server occupation is 15 not required or supported by the FLSA or its regulations. (Id.) Rather, a server’s occupation 16 includes the duties which Plaintiffs claim were non-related non-tipped duties. (See, e.g., 17 Montijo, Doc. 30-1 at 21-25.) 18 The Court agrees with IHOP. The Court finds that a server’s occupation involves side 19 work, including the miscellaneous cleaning duties required for its graveyard servers. The 20 server’s performance of incidental side work does not mean that a server is performing 21 another job classification. It is undisputed that these tasks were regularly assigned to IHOP’s 22 servers, were part of the Server Job Description, and were included in the Server Station 23 Learning Guide. (See Montijo, Doc. 30-1 at 3, 6, 32-34, and 36-70; Doc. 32 at 2.) IHOP is 24 entitled to take the tip credit for the entirety of the tipped server occupation. Thus, under 25 Plaintiffs’ allegations for Count 2, the Court finds that they were only performing one 26 27 6 28 IHOP notes that Plaintiffs worked some Friday and Saturday shifts which are normally staffed with more than two servers. (See Montijo, Doc. 36 at 2.) - 21 - 1 occupation, the server position, not two occupations. Furthermore, allowing the filing of 2 Plaintiffs’ proposed Count 2 would be futile, and will be denied. As the Court has already 3 remarked, it will not give deference to a policy having the net effect of allowing a server to 4 do nothing during slow periods at a restaurant, i.e. a graveyard shift, or require the restaurant 5 to pay the server additional sums to help out around the restaurant. The law does not require 6 that result. 7 Plaintiff Montijo’s Motion for Partial Summary Judgment 8 Montijo focuses on the cleaning duties that IHOP required of its servers and argues 9 that because IHOP required her to regularly and consistently perform non-tipped labor 10 allegedly unrelated to her tipped occupation, including, but not limited to, cleaning 11 restrooms, floors, walls, toilets, sinks, and mirrors in both the men’s and women’s restrooms; 12 scrubbing walls; sweeping carpet; cleaning air vents and mopping and scrubbing floors, she 13 was misclassified only as a server because she was performing dual occupations. (Doc. 37 14 at 3.) Montijo contends that IHOP overreaches the scope of the tip credit by requiring that 15 cleaning restrooms is somehow incidental to and part of the job of server. (Id. at 4.) 16 According to Montijo, the actual issue is IHOP’s clear incentive to pay its servers at the tip 17 credit rate in order to avoid paying janitors nearly twice as much at minimum wage to 18 perform the same labor. (Id.) In support, Montijo cites Fast v. Applebee’s Intern., Inc., No. 19 06-4146, 2010 WL 816639, *6 n.7 (W.D. Mo. March 4, 2010) (stating that “[t]here is no 20 reasonable argument that cleaning bathrooms is related to occupations where food and 21 beverages are handled even if both the bathroom and the food promote a customer’s 22 enjoyment of the restaurant.”), aff’d on appeal, Fast v. Applebee’s Intern., Inc., 638 F.3d 872 23 (7th Cir. 2012). 24 IHOP rejects Monitjo’s argument that restaurants should either employ separate and 25 additional personnel to perform distinct tasks segmented among persons fulfilling separate 26 occupations or have the restaurants and their employees separately track and record on a 27 task-by-task basis the amount of time devoted to various job tasks throughout an employee’s 28 shift based upon a determination of whether or not a task is deemed to be related to the - 22 - 1 position of being a server. (Doc. 39 at 3-4.) IHOP states that it is common in restaurants to 2 have a server walk back into a restroom on a periodic basis in order to determine whether or 3 not the restroom remains clean or to perform any required cleaning task, such as wiping off 4 the sink or picking up paper towels off the floor, etc. (Id. at 4.) Similarly, if a customer 5 spilled a drink in the hallway or on the floor in the common area between tables it is common 6 for a server to quickly mop it up. (Id.) IHOP contends that based on Montijo’s argument, 7 it would have to determine whether the momentary task of doing a quick mopping of the 8 floor or checking or cleaning the restroom is non-tipped maintenance work that must be paid 9 at minimum wage, not the tip credit rate. (Id.) IHOP contends that it impractical to attempt 10 to monitor and record on a minute-by-minute basis the time spent in each of the tasks 11 performed by servers in restaurants. (Id.) Furthermore, IHOP argues that the total restaurant 12 experience is a part of the service that generates tips for servers. (Id.) If spillage on the floor 13 in a common area of the restaurant is left uncleaned or restrooms are not properly maintained, 14 tips for servers would undoubtedly be adversely affected. (Id.) 15 The Court agrees with IHOP that the server occupation and its side work necessarily 16 includes cleaning duties in a restaurant. Montijo’s suggestion of a system requiring that 17 servers keep track of their tasks on a minute-by-minute basis and then determine tipped/non- 18 tipped and related/non-related to the server occupation in order to determine wage payments 19 is unworkable. See Pellon, 528 F. Supp. 2d at 1314 (finding that the system of accounting 20 of every minute of a skycap’s time spent on tipped/untipped duties infeasible). The Court 21 disagrees with Montijo’s argument that IHOP had a clear incentive to pay its servers at the 22 tip credit rate in order to avoid hiring and paying a janitor or janitors minimum wage to 23 perform the cleaning duties. The Court takes as true Montijo’s statement that the graveyard 24 shift was usually not very busy with customers, and that she had more time to perform side 25 work. (Doc. 30-1 at 21.) The Court also takes as true Montijo’s statement that, as a 26 graveyard server, she performed more cleaning duties that her morning or afternoon 27 counterparts. But based on Montijo’s own estimates, she only spent 10 to 20 minutes each 28 shift cleaning and restocking restrooms, which is certainly not much time required during a - 23 - 1 regular work shift. (Doc. 30-1 at 25-26.) Such a minimal time commitment is just as IHOP 2 characterized it–side work. Furthermore, the cleaning tasks regularly assigned to IHOP’s 3 servers were part of the IHOP Server Job Description and were included in the IHOP Server 4 Station Learning Guide. (Doc. 30-1 at 3, 6, 32-34, and 36-70; Doc. 32 at 2.) 5 Importantly, it is undisputed that Montijo was properly paid minimum wage for all 6 of her employed workweeks at IHOP. The Court will deny Montijo’s motion for partial 7 summary judgment arguing that IHOP was not entitled to take the tip credit for the time 8 Montijo spent performing duties allegedly unrelated to her tipped occupation. 9 CONCLUSION 10 Plaintiffs’ suggestion that this Court give credence to support and to adopt the DOL 11 sub-regulation’s 20% rule is unmerited. The Court has found that this sub-regulation is in 12 derogation of controlling federal regulations and usurps the legislative function. 13 Accordingly, on the basis of the foregoing, 14 IT IS HEREBY ORDERED in CV 14-264-PHX-SMM, denying Plaintiff Jesus 15 Analy Benitez Montijo’s motion for leave to amend her First Amended Complaint. (Doc. 28.) 16 Because the Court has found Montijo’s Counts in her SAC are constitutionally and statutorily 17 meritless, and thus futile, the Court will not grant leave to amend Counts 1 or 2. 18 IT IS FURTHER ORDERED granting IHOP’s Motion for Partial Summary 19 Judgment. (Doc. 29.) Counts 1 and 2 in Montijo’s First Amended Complaint are denied and 20 dismissed with prejudice. Montijo’s Count 3 remains. 21 22 IT IS FURTHER ORDERED denying Montijo’s Motion for Partial Summary Judgment. (Doc. 37.) 23 IT IS HEREBY ORDERED in CV 14-265-PHX-SMM, granting in part and denying 24 in part Plaintiff Sydney Colunga’s second motion for leave to amend her Complaint. (Doc. 25 30.) The Court denies Colunga’s motion for leave to amend Counts 1 and 2 for failure to 26 state a claim upon which relief may be granted. Because the Court has found Colunga’s 27 claims are constitutionally and statutorily meritless, and thus futile, the Court will not grant 28 leave to amend Counts 1 or 2; the Court grants Colunga’s motion for leave to amend to add - 24 - 1 Count 3. 2 IT IS FURTHER ORDERED granting in part and denying in part IHOP’s Motion 3 for Summary Judgment. (Doc. 28.) IHOP’s motion for summary judgment is granted as to 4 Counts 1 and 2, but denied as to Count 3. Counts 1 and 2 are denied and dismissed with 5 prejudice. 6 7 IT IS FURTHER ORDERED denying as moot Colunga’s first motion for leave to amend her Complaint. (Doc. 25.) 8 IT IS FURTHER ORDERED in CV 14-464-PHX-SMM, denying with prejudice 9 Plaintiff Crystal Sheehan’s motion for leave to amend her Complaint. (Doc. 24.) Because 10 the Court has found Sheehan’s claims in her proposed FAC are constitutionally and 11 statutorily meritless, and thus futile, the Court will not grant leave to amend Counts 1 or 2. 12 IT IS FURTHER ORDERED granting IHOP’s Motion for Summary Judgment. 13 (Doc. 22.) Plaintiff Sheehan’s Complaint is terminated with prejudice. The Clerk of Court 14 shall terminate No. CV 14-464-PHX-SMM, and enter judgment for Defendant. 15 DATED this 30th day of March, 2015. 16 17 18 19 20 21 22 23 24 25 26 27 28 - 25 -