Gregori et al v. Market Street Management, Llc

MOTION to Dismiss for Failure to State a Claimor in the Alternative Motion for Summary Judgment

D. Md.December 7, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Northern Division LUCAS GREGORI, et al. * Plaintiffs * CIVIL NO. 16-03853 JFM v. * MARKET STREET MANAGEMENT * LLC * Defendant * * * * * * * * * * * DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT OR IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT Defendant Market Street Management, LLC (“Market Street” or “Defendant”), by and through its undersigned counsel and pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, moves to dismiss or in the alternative for summary judgment Plaintiffs Lucas Gregori and William Gouge’s (collectively, “Plaintiffs”) Complaint for the reasons set forth in the attached Memorandum of Law. WHEREFORE, Defendant respectfully requests that this Court dismiss with prejudice Plaintiffs’ Complaint. Respectfully Submitted, /s/ Suzzanne W. Decker (Fed. Bar. No. 24007) MILES & STOCKBRIDGE P.C. 100 Light Street Baltimore, Maryland 21202 Tel: (410) 727-6464 Fax: (410) 385-3700 Email: sdecker@milesstockbridge.com Attorney for Defendant Case 1:16-cv-03853-JFM Document 8 Filed 12/07/16 Page 1 of 2 2 CERTIFICATE OF SERVICE I hereby certify that on the 7th day of December, 2016, a copy of the foregoing was filed using the Court’s CM/ECF system upon: Gregg C. Greenberg, Bar No. 17291 Zipin, Amster & Greenberg, LLC 8757 Georgia Avenue, Suite 400 Silver Spring, Maryland 20910 Telephone: 301-587-9373 Fax: 301-587-9397 Email: ggreenberg@zagfirm.com Attorney for Plaintiffs ____/s/ _____________________________ Suzzanne W. Decker (Fed. Bar No. 24007) Case 1:16-cv-03853-JFM Document 8 Filed 12/07/16 Page 2 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Northern Division LUCAS GREGORI, et al. * Plaintiffs * CIVIL NO. 16-03853 JFM v. * MARKET STREET MANAGEMENT * LLC * Defendant * * * * * * * * * * * * MEMORANDUM IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS’ COMPLAINT OR IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT Defendant Market Street Management, LLC (“Market Street” or “Defendant”) by its undersigned counsel, submits the following memorandum in support of its motion to dismiss Plaintiffs’ Complaint or in the alternative motion for summary judgment. INTRODUCTION The instant case is a repeat of the prior Complaint filed by the same plaintiffs’ alleging an improper tip pool that this Court dismissed. In reaction to this Court’s dismissal, Plaintiffs’ filed the newest version of the Complaint in Frederick County Circuit Court in order to avoid the review of this Court. The adding of a few names and some conclusory allegations regarding duties does not fix the deficiencies in the Complaint. Defendant should not have to continue to defend itself and incur fees related to class action litigation in such a baseless matter. Case 1:16-cv-03853-JFM Document 8-1 Filed 12/07/16 Page 1 of 12 2 PROCEDURAL HISTORY Plaintiffs initially brought their class action claims before this Court as part of Case Number 1:16-cv-01641-JFM alleging improper use of a tip pool under the Fair Labor Standard Act (“FLSA”) and Maryland Wage and Hour Law (“MWHL”). Plaintiffs asserted claims against multiple affiliated restaurants. Following full briefing on the Motion to Dismiss for failure to adequately state a claim, the Court dismissed Plaintiffs’ lawsuit on October 7, 2016. Thereafter, on October 18, 2016, Plaintiffs refiled their case in the Circuit Court for Frederick County, again alleging an improper use of a tip pool. This time Plaintiffs have limited the case to the one restaurant that actually employed them. Defendant properly removed the case to federal court. FACTS Plaintiffs were employed as waiters by Defendant Family Meal Restaurant located in Frederick Maryland from November 2014 through December 2015. (Complaint ¶¶28-29). A portion of Plaintiff’s compensation came from a “tip pool” utilized by the restaurant. (Id. ¶34). Plaintiffs have identified individuals who they allege were managers and manager level- employees who improperly participated in the tip pool; “Assistant General Manager Ms. Rudolph; bar manager Josh Cross Manager; Manager Liz Reap; and several other managers and shift managers” (Complaint ¶39). Plaintiff identified a general list of job duties but not the duties performed by each individual (Complaint ¶41). Family Meal uses a tip pool for its employees who serve food and beverages or perform services traditionally covered by a gratuity. The tip pool combines the tips received by all of the servers during a shift.1 (See Exhibit 1, James Vickers Declaration ¶¶6-7 (“Vickers Decl.”); 1 A majority of the specific information regarding the internal process for the tip pool, as well as a number of payroll records submitted with this brief were produced to Plaintiffs back in May 2016. Case 1:16-cv-03853-JFM Document 8-1 Filed 12/07/16 Page 2 of 12 3 Exhibit 2, Lyndsay Rudolph Declaration2 (“Rudolph Decl.”), ¶¶6-8) The total is apportioned to the employees based on the number of hours that each employee worked during the shift. (Id.). Employees receive weekly pay checks which contain compensation based on the total number of hours worked and the amount allocated to the employee for the tips during that week. (Id. at ¶8; Exhibit 1, Vickers Decl. ¶7). No tips are paid out in cash to the employees. (Id.). Plaintiffs’ payroll records show how much compensation they each received for the exact number of hours worked and how much in tip income received each week. The following information is provided for the four individuals Plaintiffs identify as managers in the Complaint. • Jim Vickers – Mr. Vickers was the General Manager of the restaurant and held the authority for hiring and firing of restaurant employees; he made the discipline decisions regarding employees and decisions regarding the overall operation of the business. (Vickers Declaration ¶8). His attached earnings reports make clear that he received a consistent salary and never received an allocation of tips from the tip pool. (Id. at ¶¶9- 10). • Lyndsay Rudolph – Ms. Rudolph was the Assistant General Manager and then General Manager of the restaurant and was involved in the supervision of employees and the operations of the business. (Rudolph Declaration ¶2). She held the authority to hire, discipline and fire employees, set compensation and hours and to maintain employee records. (Rudolph Declaration ¶5). Her attached earnings reports make clear that she received a consistent salary and did not receive an allocation of tips from the tip pool. (Rudolph Declaration ¶11). 2 Declarations for Rudolph and Liz Reap have been reviewed and authorized by the witnesses and the executed copy will be filed promptly. Case 1:16-cv-03853-JFM Document 8-1 Filed 12/07/16 Page 3 of 12 4 • Josh Cross – Mr. Cross was a bartender whose duties included taking orders and serving customers directly as well as preparing beverages for other servers. (Rudolph Declaration ¶12). He did not have ultimate authority to hire, discipline or fire employees. (Id.). He did participate in the tip pool. • Liz Reap – Ms. Reap was a bartender whose duties include serving customers directly as well as preparing beverages for other servers. (Exhibit 3, Liz Reap Declaration ¶3 (“Reap Decl.”). She did not have ultimate authority to hire, discipline or fire employees. She did participate in the tip pool. STANDARD OF REVIEW The purpose of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (6) is to test the sufficiency of the plaintiff's complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Pursuant to Rule 12(d) of the Federal Rules of Civil Procedure, where “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . . .” FED. R. CIV. P. 12(d) (2012). Pursuant to Rule 56, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56 (2012); see also Catawba Indian Tribe of S.C. v. City of Rock Hall, 501 F.3d 368, 370-71 (4th Cir. 2007). As the Fourth Circuit has observed, a primary purpose of summary judgment “‘is to isolate and dispose of factually unsupported claims’…and Rule 56 must be interpreted and applied ‘in a way that allows it to accomplish this purpose.’” Carr v. Deeds, 453 F.3d 593, 605 (4th Cir. 2006) (quoting Celotex Case 1:16-cv-03853-JFM Document 8-1 Filed 12/07/16 Page 4 of 12 5 Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S. Ct. 2548, 2551-52, 91 L. Ed. 2d 202, 205-06 (1986)). To overcome a summary judgment motion, the non-moving party must offer evidence from which a fair-minded jury could return a verdict for the party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). To prove that a genuine issue of material fact exists, the non-moving party must, “cit[e] to particular parts of materials in the record . . . .” FED. R. CIV. P. 56(c). When a plaintiff “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, . . . Rule 56[] mandates the entry of summary judgment.” Celotex Corp., 477 U.S. at 322. ARGUMENT A. No Claim is Stated under the FLSA The FLSA requires employers to pay "nonexempt employees" a $7.25 minimum wage for each hour worked. 29 U.S.C. § 206(a)(1)(c). However, the FLSA provides an exception, commonly referred to as a tip credit, which allows employers to pay less than the minimum wage to employees who receive tips. 29 U.S.C. § 203(m). Under this provision, an employer may pay a tipped employee less than $7.25 (but at least $2.13) an hour if the combination of the employee's wages and tips equates to at least $7.25 per hour. Gionfriddo v. Jason Zink, LLC, 769 F.Supp. 2d 880, 893 (D. Md. 2011). To take advantage of the ordinary tip credit, the employer must "(1) inform the employee that the tip credit was being claimed; and (2) allow the employee to retain all tips he or she received. . . ." Dorsey v. TGT Consulting, LLC, 888 F.Supp. 2d 670, 681 (D. Md. 2012). "Employees are permitted to share tips through a tip pooling or tip splitting arrangement so long as each employee customarily receives more than $30 per month in tips." Gionfriddo, 769 F. Supp. 2d at 893; see also 29 C.F.R. § 531.54. Case 1:16-cv-03853-JFM Document 8-1 Filed 12/07/16 Page 5 of 12 6 In lieu of permitting employees to retain all tips provided to them, however, it is also permissible for an employer to utilize a tip pool aggregating all tips received and providing the employees with shares when “the pooling of tips [is] among employees who customarily and regularly receive tips.” 29 U.S.C. § 203(m) (emphasis added). . Under the express terms of the “tip pooling” exception in 29 U.S.C. § 203(m), there is no per se exclusion of employees with some managerial responsibilities from participating in a tip pool, but such individuals must meet the requirement of being “employees who customarily and regularly receive tips” to be included. Personnel whose managerial roles are sufficiently extensive to render them, effectively, stand-ins for the employer are excluded because they are not deemed to be “employees” at all, but are statutory “employers” under 29 U.S.C. § 203(d) (“Employee . . . includes any person acting directly or indirectly in the interest of an employer in relation to an employee.”) Personnel who so frequently and extensively perform managerial tasks, that they are prevented from having the customer contact that would “customarily and ordinarily” prompt customers to tip them, are also excluded. Likewise, employees who as a matter of a restaurant’s practice are not to be tipped are excluded. In any such cases, liability does not turn on being conclusorily labeled a so-called “manager” or as “management level” personnel, by either a plaintiff, or even the employing restaurant. It is the details of what the particular personnel and employers actually do so as to include them or not as “employees who customarily and regularly receive tips.” In fact, the case Plaintiffs’ highlight and cite in their complaint -- Gionfriddo v. Jason Zink, LLC, 769 F.Supp. 2d 880 (D. Md. 2011) -- illustrates the point. The offending tip pool participant in that case was not improperly included for being management level, but because he was the restaurant owner, and as such, was necessarily a statutory “employer” under § 203(d) rather than an “employee Case 1:16-cv-03853-JFM Document 8-1 Filed 12/07/16 Page 6 of 12 7 who customarily and regularly receives tips.” In fact, Plaintiffs’ Complaint highlights this reasoning at ¶ 46, quoting Gionfriddo as holding that “the FLSA expressly prohibits employers from participating in employee tip pools.”) (Emphasis added.) While Plaintiffs have identified four employees by name who allegedly participated in the tip pool, they have not identified what duties each of the four engaged in. Plaintiffs rely primarily on the manager job title for each employee to support the necessary allegations of improper participation in the tip pool. Next, the laundry list of job duties set out in Paragraph 41 of the Complaint is not specific to any one of the four listed despite the fact that Plaintiff contends each held a different job title. Moreover, the list in Paragraph 41 includes a number of job duties that would not fall into the category of duties that Courts have found probative of being an employee whose participation would invalidate the tip pool. Plaintiffs must identify the specific duties performed by each sufficient to render him or her an improper participant in the tip pool. Under the Twombly and Iqbal pleading standards, “a plaintiff‘s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions.” Twombly, 550 U.S. at 555. Moreover, insofar as a complaint includes well-pleaded facts, rather than labels and conclusion, they must “permit the court to infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679. Courts faced with similarly vague and evasive accusations in tip pooling cases have not hesitated to dismiss them. See, e.g., Frebes v. Mask Restaurants LLC, 2013 U.S. Dist. LEXIS 133068 (N. D. Ill. Sept 28, 2013), noting: [W]e conclude that more detail is necessary for Plaintiffs to adequately allege that food runners are non-tipped employees. At present, Plaintiff’s claims rest solely on the job title of the food runners - but that job title tells us nothing about the underlying facts. Plaintiffs have not alleged, for example what food runners Case 1:16-cv-03853-JFM Document 8-1 Filed 12/07/16 Page 7 of 12 8 do at Tavern at the Park, including their specific job duties, how much time they spend on each duty, whether and how often they interact with customers, and how they are paid. Plaintiffs have not described how the tip pooling arrangement was formed, or how it operated with respect to tipped employees or food runners. The complaint thus lacks sufficient factual content from which we could draw the reasonable inference that Defendants have engaged in the misconduct alleged Id. at *8 - * 9. Accord Alonso v. Ocean CC LLC, 2015 U.S. Dist. LEXIS 45244 at * 5 (S. D. Fla. April 7, 2015) (“The complaint simply alleges that Defendants impermissibly retained a portion of all the servers’ tips and shared them with non-tipped employees. It does not identify a specific group with whom the servers had to share tips or explain why those employees were ineligible for tips.”). See also Roberts v. Apple Sauce, Inc., 945 F. Supp. 2d 995, 1003-04 (D. Ind., May 13, 2013), noting that tip pooling claims are complex and that “the required level of factual specificity rises with the complexity of the claim.” At a minimum, Plaintiffs should be required to plead what specific facts concerning those positions, including their specific job duties, supposedly rendered them not “employees who customarily and regularly receive tips,” as required under 29 U.S.C. § 203(m). Because it includes no such allegations, their FLSA count must be dismissed. B. There Are No Facts to Support The Conclusion That Improper Employees Participated in the Tip Pool. The central issue to this case is whether those employees who participated in the tip pool meet the definition of statutory employer. To begin, Vickers, the General Manager and Rudolph, the Assistant General Manager/General Manager did not participate in the tip pool. Family Meal compensated both with a consistent salary and not tips as evidenced by the attached payroll records. They are the only two individuals identified in the Complaint who did not customarily serve customers and who did engage in the job duties that Courts have held to evidence such a level of authority as to render the employee to be a “statutory employer”. That is Vickers and Case 1:16-cv-03853-JFM Document 8-1 Filed 12/07/16 Page 8 of 12 9 Rudolph had the ultimate authority to 1) hire, discipline and terminate employees; 2) to set compensation and hours; and 3) to maintain employee records. See Arencibia v. 2401 Rest. Corp., 831 F. Supp. 2d 164, 176 (D.D.C. 2011) (“In determining whether a person in question is an “employer” within the meaning of the FLSA and thus is disqualified from participating in any valid tip pool arrangement, the court applies “the economic reality test,” considering whether the person: (1) had the authority to hire and fire employees; (2) supervised and controlled work schedules or the conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records.”) The only other two individuals identified, Liz Reap and Josh Cross participated in the tip pool and held jobs that took orders and served customers. They did not have the ultimate authority to hire, discipline or terminate other employees; to set wage rates or hours; or maintain the employee records. At best they had a key to lock and unlock the restaurant. Such job duties are not sufficient to meet the high burden of establishing that Reap and Cross were statutory employers who could not participate in the tip pool. Even if Reap and Cross held manager titles as alleged in the Complaint that would be insufficient in light of the actual duties performed. Ayres v. 127 Restaurant Corp., 12 F. Supp. 2d 305, 308-09 (S.D.N.Y.1998). It is not the title that determines an invalid tip pool participant. Thus, for example, in Morgan v. Speak-Easy, LLC, 625 F. Supp. 2d 632 (N. D. Ill. 2007), the court rejected claims that a senior server, whom the plaintiff repeatedly contended was a “manager,” and who had the title “manager” on her business card, invalidated a tip pool by being included in it: Morgan concedes that senior servers did not have authority over hiring, firing, or scheduling, but he believes they were managers nonetheless, stressing that their duties included directing and supervising employees' work . . . Keila Herrington, another employee Defendants characterize as a senior server, had the same responsibilities as Williamson, but she also had a business card identifying her as a "manager." Andre Case 1:16-cv-03853-JFM Document 8-1 Filed 12/07/16 Page 9 of 12 10 acknowledged that Herrington "was a manager for a short time," but claimed that it was "more of a title than it was a responsibility." *** [T]he court concludes that senior servers constituted "tipped employees" and not "employers" under the FLSA . . . It is true that senior servers exercised some control over employees, such as sending them home, requesting additional staff, and supervising their work. They had no authority, however, over hiring, firing, or scheduling. Nor did they determine the rate or method of employee payment, or maintain employment records beyond performing clerical duties such as completing the Nightly Closing Forms. Cf. Freemon v. Foley, 911 F. Supp. 326, 331 (N.D. Ill. 1995) (FLSA applies where individual "possesses control over the aspect of employment alleged to have been violated.") Herrington's business card did identify her as a manager, but there is no evidence that her actual duties differed from those of other senior servers such as Williamson. At most, these senior servers were low-level supervisors who cannot be considered employers under the FLSA . . . See Hernandez, 2006 U.S. Dist. LEXIS 48399, 2006 WL 1993552, at *3 (supervisor was not an "employer" where he could hire employees and had some control over their work schedules, but he did not determine the rate or method of payment and performed only clerical duties related to employment records); Dole, 751 F. Supp. at 802 (rejecting the argument that "any person who has any supervisory duties over other employees, no matter how minimal, becomes an 'employer' within the meaning" of the FLSA. Id. at 639 and 653 (emphasis added). In the instant case, Plaintiffs Gregori and Gouge have not and cannot establish that improper employees participated in the tip pool thus rendering the tip pool credit inapplicable. Without this there is not claim for unpaid wages and the claims should be dismissed. C. No Claim is Stated Under the MWHL or the MWPCL Maryland’s “tip” provision in its minimum wage law is set forth in MD. Ann. Code, L & E Art., § 3-419 and in similar terms to 29 U. S. C. § 203(m), allows tips to be credited against wage payment obligations to an employee who is “engaged in an occupation in which [he] customarily and regularly receives more than $30 each month in tips.” Tip pooling is explicitly permitted under § 3-419(a)(2). (“[T]his section does not prohibit the pooling of tips.”) In contrast to § 203(m), this section “does not explicitly place any restrictions on tip pooling arrangements.” Mould v. NJG Food Serv. Inc., 2014 U.S. Dist. LEXIS 84441 at * 12 (D. Md. Case 1:16-cv-03853-JFM Document 8-1 Filed 12/07/16 Page 10 of 12 11 June 17, 2014). The most that might be inferred by way limitation is that “in light of the congruent nature of the FLSA and the MWHL,” the federal tip pooling requirements may be read into it. Id. at *12 - * 13. In even starker contrast to the FLSA, the MWPCL includes no language at all defining proper tip pooling practices or even payment of minimum wages. At most, in tip pool disputes it arguably can be read to provide a supplemental cause of action for payment of “wages due,” including under the MWHL, for improper pooling practices that lead to inappropriate deductions from wages otherwise due. See Marshall v. Safeway, Inc., 437 Md. 542, 88 A. 2d 735 (2014). Accordingly, what claims Plaintiffs may have under the MWHL and MWPCL, if any, would be subject to the same substantive standards concerning “tip pooling” as apply under the FLSA, and in fact, Plaintiffs identify no different substantive basis that might govern their MWHL and MCPCL claims. Because as illustrated above, Plaintiffs’ vague and conclusory claims about Market Street’s improper inclusion of one or more “managers” or “management level” employees in their tip pool fails to state a claim under the FLSA, for the same reason they have failed to state claims under the MWHL and the MCPCL, and those count likewise must be dismissed. CONCLUSION Defendant should not be required to go through the expense of defending claims, of undergoing discovery, of suffering through conditional class certification and notice, where the Complaint fails to state a claim for an improper tip pool. Based upon the evidence submitted in support of this Motion, Defendant requests this Court grant summary judgment in favor of Defendant. Case 1:16-cv-03853-JFM Document 8-1 Filed 12/07/16 Page 11 of 12 12 Respectfully Submitted, /s/ Suzzanne W. Decker (Fed. Bar No. 24007) sdecker@milesstockbridge.com MILES & STOCKBRIDGE P.C. 100 Light Street Baltimore, Maryland 21202 410-727-6464 (voice) 410-385-3700 (facsimile) Attorney for Defendant Case 1:16-cv-03853-JFM Document 8-1 Filed 12/07/16 Page 12 of 12 EXHIBIT 1 Case 1:16-cv-03853-JFM Document 8-2 Filed 12/07/16 Page 1 of 10 Attachment A Case 1:16-cv-03853-JFM Document 8-2 Filed 12/07/16 Page 2 of 10 EMPLOYEE EARNINGS RECORD Page 1 013 0030 1804-2504 MARKET STREET MANAGEMENT (Requested Check Dates 11/01/14 - 11/30/14) Case 1:16-cv-03853-JFM Document 8-2 Filed 12/07/16 Page 3 of 10 EMPLOYEE EARNINGS RECORD Page 2of 3 0030 1804-2504 MARKET STREET MANAGEMENT (Requested Check Dates 11/01/14 - 11/30/14) Case 1:16-cv-03853-JFM Document 8-2 Filed 12/07/16 Page 4 of 10 EMPLOYEE EARNINGS RECORD Page 3 of 3 0030 1804-2504 MARKET STREET MANAGEMENT (Requested Check Dates 11/01/14 - 11/30/14) Case 1:16-cv-03853-JFM Document 8-2 Filed 12/07/16 Page 5 of 10 EMPLOYEE EARNINGS RECORD Page 1 of 5 0030 1804-2504 MARKET STREET MANAGEMENT (Requested Check Dates 01/01/15 - 12/31/15) EMPLOYEE NAME ID EMPLOYEE NAME ID EMPLOYEE NAME ID EMPLOYEE NAME ID 5108 FOH MANAGEMENT Vickers, James P JAO1 1 Person(s) Case 1:16-cv-03853-JFM Document 8-2 Filed 12/07/16 Page 6 of 10 EMPLOYEE EARNINGS RECORD Page2of5 0030 1804-2504 MARKET STREET MANAGEMENT (Requested Check Dates 01/01/15 -12/31/15) Case 1:16-cv-03853-JFM Document 8-2 Filed 12/07/16 Page 7 of 10 EMPLOYEE EARNINGS RECORD Page 3 of 5 0030 1804-2504 MARKET STREET MANAGEMENT (Requested Check Dates 01/01/15 - 12/31/15) Case 1:16-cv-03853-JFM Document 8-2 Filed 12/07/16 Page 8 of 10 EMPLOYEE EARNINGS RECORD Page 4 of 5 0030 1804-2504 MARKET STREET MANAGEMENT (Requested Check Dates 01/01/15 - 12/31/15) HOURS, EARNINGS, AND REIMBURSEMENTS & OTHER PAYMENTS WITHHOLDINGS - - NET_________ __________ REIMB & _________ _________ _______ CHECK DESCR REGULAR OVERTIME REGULAR OVERTIME TOTAL OTHER SOC SEC FEDERAL STATE LOCAL OTHER PAY DATE HOURS HOURS AMOUNT AMOUNT EARNINGS PAYMENTS * MED TAX TAX TAX _______ ____________________________________________________ __________ 12/04 Salary 1346.1/ 1346.1 102.9 101.6 96.5; 1044.91 12/11 Salary 1346.1/ 1346.1 102.9 101.6 96.5 1044.90 12/18 Salary 1346.1 1346.1 102.9 101.6 96.5 1044.91 12/24 Salary 1346.1; 1346.1 102.9 101.6 96.5 1044.91 12/31 Salary 1346.1; 1346.1 102.9 101.6 96.5 1044.91 This Salary 71345.95 Period Total This Per 71345.95 71345.95 S 4423.45 5354.42MD 55414.82 M1034.52 5118,74 _________________________________________ ______________ _____ ________ _______ _________________ _______ _____ Vickers, James P Soc Sec#: Case 1:16-cv-03853-JFM Document 8-2 Filed 12/07/16 Page 9 of 10 EMPLOYEE EARNINGS RECORD Page 5of5 0030 1804-2504 MARKET STREET MANAGEMENT (Requested Check Dates 01/01/15 - 12/31/15) Case 1:16-cv-03853-JFM Document 8-2 Filed 12/07/16 Page 10 of 10 DECLARATION OF LYNDSAY RUDOLPH Pursuant to 28 U.S.C. § 1746, I declare as follows: 1. I, Lyndsay Rudolph am over eighteen years of age, a resident of Maryland and have personal knowledge of all contained in this declaration. 2. At all times relevant to the claims, I have been the Assistant General Manager or then General Manager for the Family Meal restaurant and in that capacity have access to and an understanding of its business operations and annual revenue. 3. I have worked in a manager role since September 2013. 4. I do not receive tips as part of my compensation. 5. My duties include the overall supervision of Family Meal. This includes day to day supervision of employees, including hiring, discipline and termination. I make the ultimate decision regarding hiring, discipline and termination. I also make the decisions as to what employees are paid, the hours they work, and maintain the records for each employee. I also create and oversee the schedule. 6. One of my tasks is to calculate the tip pool allocations for the employees on our team who serve customers and receive tips as the normal part of their duties. 7. Each day the tips are collected and combined. I put the information into a spreadsheet and the tips are then allocated amongst the wait staff based on the number of hours that they worked during the day. 8. At the end of the week the total of the weekly tip allocations for that week are forwarded to payroll and appear as a separate line item on the pay check. 9. Attachment A to this Declaration is the Employee Earnings Record for Lucas Gregori. As can be seen on the document, for each week worked Mr. Gregori received an hourly rate for the hours that he worked and there is a separate line for the tips allocated for that particular week. He received a check each week. 10. Attachment B to this Declaration is the Employee Earnings Record for William Gouge. As can be seen on the document, for each week worked Mr. Gouge received an hourly rate for the hours that he worked and there is a separate line for the tips allocated for that particular week. He received a check each week. 11. Attachment C to this Declaration is my Employee Earnings Record. As can be seen on the document, I am compensated with a salary that is consistent for every week that I work and there is no tip allocation. 12. The bartenders mentioned in this case, Josh Cross and Liz Reap did not have the authority to discipline employees or, to hire or fire employees. They did not maintain Exhibit 2 Case 1:16-cv-03853-JFM Document 8-3 Filed 12/07/16 Page 1 of 19 employee records. They were bartenders whose primary duty was to serve customers. They did have keys to the establishment to open or to lock up the restaurant. I SOLEMNLY AFFIRM under the penalties of perjury that the content of the foregoing declaration is true and colTect. Executed on this day of December 2016 Lyndsay Rudolph Case 1:16-cv-03853-JFM Document 8-3 Filed 12/07/16 Page 2 of 19 Attachment A Case 1:16-cv-03853-JFM Document 8-3 Filed 12/07/16 Page 3 of 19 0030 1104-2504 MARKET STREET MANAGEMENT HOURS. EARNINGS. AND NRINSUNSRMENYS £ 07 niece oases nou*p nouta. ovens., SATE HOURS HOURS AMOUNT AMOUNT 12/19 Training 283 21 23 12/26 Trarrng 29 95 224 63 Tho TrSeng 32 78 245 86 Penod Total Tha Per 32 78 245 86 Gregofl, Lucas i ID Soc Ssc#: I Home Dept 5110 FRONT Sea Not Specrf.ea/ I Brthdate Hce Date Inactive Dale Ruhit. Dale EMPLOYEE EARNINGS RECORD (R.qU..t.d Check Dat.. 01/01/14. 12131/14) Case 1:16-cv-03853-JFM Document 8-3 Filed 12/07/16 Page 4 of 19 EMPLOYEE EARNINGS RECORD 0030 1104-2504 MARKET STREET MANAGEMENT (R.qu..t.d Ch.ck Oat.. 01/01/14 - 12/31/14) CHICK DISCEIPTION RATE This Trairing Period Total This Period Total HOURS, EARNINGS, AND RIIMUISSMINTI & OTHER PAYMENTS REGULAR OVERTIME RIOULAR OVERTIME HOURS HOURS SMOUNT AMOUNT 32 7W 245 86! REINS TOTAL & OTHER EARNINGS PAyMENTS 245 86 245 86 WITHHOLDINGS Social Security Medicare MD Income Tax DEDUCTIONS NET PAY 15 24! 3 56 5 39 24 19 221 67 Case 1:16-cv-03853-JFM Document 8-3 Filed 12/07/16 Page 5 of 19 0030 1504-2504 MARKET STREET MANAGEMENT EMPLOYEE EARNINGS RECORD (Reque.t.d Check Sates 01/01115 - 12131/15) + NOUNS. IASNIIIOS. AND NENDUNSEMENTI a omen PAYENTh - WTTNNO4.DDCS CNUCD NSCU DIGULAN OVEITIND NIQULAN OXS*tND TOTAL OOUES NOC SIC SENSNAI. STATS DAYS NOUSS HOURS AHOUNT ANOUNT EANNNISI PAYNINTS NID TAX TAR 01/02 Training 2 13 1590 15 9 1 22 01/09 Training 1821: 145 6 145 6 1114 01116 Hourly 8 30 30 13 195 21 14 94 341. Training 325 2600 TipaCharge 13907 01/23 Hourly 1801 6535 2787 2133 932 TipsClrXrge 21340 01/30 HOurly 12 76 46 32 161 2d 12 32 0 74 TipsCharge 11488 02/06 Hourly 2904 10542 41841 320 2042 TipsCharge 31299 02/13 Hourly 3506 12727 63022 4821 475 3726 Tips Charge 502 95 02/20 Hourly 3460 12560 . 63803 4881 553 3785 TipsCharge 51243 02/27 Hourly 4000 14520 70149 536 1188 4293 Overflrrie 239 13 01 Tips Charge 543 28 03/06 Hourly 3272 11877 55435 42 41: 3123 Tips Charge 435 58 03/13 Hourly 31 11533 6065, 46413 239 353 Tips Charge 491 21 03/20 Hourly 40013 14520 I 9555l 731 4705 6312 Onertime 40q 217 Tips Charge 788 52 03/27 Hourly 252P 9148 4402 3367 2216 lips Charge 348 78 I 04/03 Hourly 2925 10618 5263 4027 290 Tips Charge 42012 04/10 Hourly 3054 11086 524 7T 1 28 8 TipsChargel 41384 04/17 Hourly 2470 8995 3960d 30311 1864 Tips Charge 306 II 04/24 Hourly 31 87 11569 652 9 4994 703 3907 Tips Charge 537 28 05/01 Hourly 3259 11830 591 2 45 2 086 34 18 Tips Charge 472 95 . : 05/08 Hourly 3403 12353 561 78 4291 31 8 Tips Charge 438 25 05/IS Hourly 2912 10571: 4396 3364 2211 Tips Charge I 333 94 05/22 Hourly 3795 13776 66688 1 5102 842 4017 Tips Charge 529 12 05/29 Hourly 3429 12447 59987 4589 1 72 3485 Tips Charge : 475 40 Gregofl, Lucas ID 99 : Term Date Home Dept 5110 FRONT SERVER Pay Frequency Sen Not Specified Standard Nm Birlhdate lire Date Inactive Date Rehire Date 1 L Rese Da NET LOCAL OThER PAT 1476 '3454 17685 Wthholding Federal Deductions: Method MD S Earnings: 24813 148 14 36597 540 00 54581 59302 45071 522.37 77223 38443 45703 45570 34711 55691 51099 48699 38390 56727 51741 Case 1:16-cv-03853-JFM Document 8-3 Filed 12/07/16 Page 6 of 19 0030 1104-2504 MARKET STREET MANAGEMENT EMPLOYEE EARNtNGS RECORD (R.qu.st.d CIs.ck Dat., 01101115 - 12/31115) HOURS, EARNINGS, ANN RIINRUSSSMSNTS & OTHER PaYMENTS - WITHHOLDINGS REID S CHECK 055CR REGULAR OVERTIME REGULAR OVERTIME TOTAL OTHER 50C SEC PEDERAL STATS LOCAL OYSISR OATS HOURS HOURS AMOUNT AMOUNT EARNINGS PAYMENTS MUD TAX TAX TAX 06/05 Hourly 1383 5020 25650 1961 755 Trç,s Charge 20630 06/1? HOurly 3555 12905 56498 4323 3207 lips Charge 435 91 06)19 Hourly 24 10 8748 34512 2639 1458 Tips Charge 25764 06/26 Hourly 3501 17709 501 95 3841 2708 lips Charge 37486 07/03 Hourly 3180 11565 55509 4248 3129 Trps Charge 439 44 07110 HOurly 3361 12200 52166 3990 2863 lipsCharge 39968 07111 Hourly 3335 12117 46467 3555 2410 lipsCharge I 3l 07/24 Hourly 400I 14520 69552 5321 1128 4246 Overtime 3571 1944 Tips Charge 530 8 I 07/31 Hourly 1436 6176 4725 3626 lips Charge 474 0 08/07 Hourly 330 120 1 60163 4603 1 3499 Tips Charge 481 511 08114 Hourly 24 1 87 5 414 1 3168 2009 lips Charge 326 6 08121 Hourly 26 5 96 3 48464 3708 25 6 Tips Charge I 388 2 08/28 Hourly 92 33S' 20733 1588 423 TipiCharge 17379 This Hourly 971 79 3527 63I Perind Training 2359 187 66: Total Overtime 9 961 54 23 TrpsCharge1 13162511 This PerI 995 38: 996: 16871 80, 5423 1693203 S 104979 106 3OMD ______________ M24551 9r154 NOUSAY SRVISASICR 51CR SICK SUAI, VACATION CASH TIPS CHAROR TIPS INSIRUCT TIPS YTD HOURS PAID YTD EARNINGS PAID 13162 51 Gr.gofl, Lucas Case 1:16-cv-03853-JFM Document 8-3 Filed 12/07/16 Page 7 of 19 EMPLOYEE EARNINGS RECORD 00301104.2504 MARKET STREET MANAGEMENT (R.qu..t.d Ch.ck Dat. 01101115- 1V31l15) - NOUSBEASINNOS, AU EIINSUSSIMEWTS 8 OTNEN PAYMENTS CHECK DESCRIPTION NEOUIAS OVERTIME NEOUIAS OVERTIME SATE HOURS HOURS AMOUNT AOUNT TEa hourly 971 79 3527 &a Per-rod TrauTng 2359 187 66- Total Oxer5rne 996 5423 Trps Charged 1316251 TEa Penodi Total TOTAL EANNINGS 1593203 1693203 REINS & OmEN pAYMENTS 0 WITHHOLDINGS Soc,al Secunly MedCare Fed Income Tax MD Income Tax SEDUCTIONS NET PAY 104979 24551 30 911 54 2313 14 1411889 --.---- ------------------- HOUSAY UEVIRAMCI SICK SICK SUAL VACATION ---- CASH TIPS 0 ----- __ CHARNS TIPS IMSINICT TiPS YTO HOURS PAID - 'ITO EARNINGS PAll) 13162 51 (R) Resident I Residency. (N) Non-resident. (El Emp'oyment Case 1:16-cv-03853-JFM Document 8-3 Filed 12/07/16 Page 8 of 19 Attachment B Case 1:16-cv-03853-JFM Document 8-3 Filed 12/07/16 Page 9 of 19 0030 1104-2504 MARKET STREET MANAGEMENT EMPLOYEE EARNINGS RECORD (R.qo.it.d Ch.ck Dat.s 01/01/15. 12/31115) 140055, SAININGI, AND UIINSUUIDMENYS £ OTHIS PATMINTI WITHHOLDINGS NET CHICK DISCS ISOULAD OVISTINI IDGULAK OVISTIMU TOTAL SlING C OTHER SOC SIC PIORUAL STATS LOCAL OTHUR PAY DATE HOUND HOURS AMOUNT AMOUNT KAININOD PAYMENTS MID TAX TAX TAX 04/03 Training 4090 32720 32720 2503 1291 2238 26688 04110 Hourly 2261 82071 53071 406 41 Q 3819 41099 TrainIng 9 3/) 74 4 I Tips Charge 374 30 04/17 Hourly 3213 116 6 6421 49 1 5774 46 7 48851 Tips Charge 525 54 04/24 Hourly 3700 134 31 69624 53271 6589 5098 526 14 Tips Charge 56193 05/01 Hourly 3796 13779 75427 5769 74 56 5548 56654 Tips Charge 61648 05/08 Hourly 3657 13275 6843 5238 MO7 5005 51784 Tips Charge 5515, 05/15 Hourly 400/) 14520 93891 7187 10437 6975 69299 OverlirTie 450 2450 Tips Charge 76921 05/22 Hourly 3854 13990 80070 61 25 81 52 59 0 59886 Tips Charge 660 8 05/29 Hourly 31.24 113 4( b32.0 4836 56 2 46 0 481 42 TipsCharge1 5186C 06/05 Hourly 34 2 124.36 88 56211 71 6 53 9? 55306 TipsCharge 61053 06/12 Hourly 28 7 104 2 5930 45 37 50 3 42 9 454 32 Tips Charge 488 7 I 06/19 Hourly 2111 766 3931 30011 203 274 31519 TipsCha: 31651 06/26 Hourly 3423 12425 721 0 55 171 69 5 5290 54344 Tips Charge 596 8 07/03 Hourly 40013 14520 922 21! 7058 10014 6849 68303 Ov.rlim. 283 1541 Tips Charge 761 60 07/10 Hourly 36 g 1328 80201: 6135 81 7 5915 59976 TipsCharge. 6691 07/17 Hourly 3504 127 20 67645 5175 6289 4944 51237 Tips Charge 549 25 07/24 Hourly 3790 137.58 86491 66 i71 91 1 6405 64354 Tips Charge 727 33 07/31 Hourly . 78 71 10422 625 771 47871 552 4557 477 10 Tips Charge 521 08/07 Hourly 302 1099& 6524 4991 592 4759 49567 TipsCharge, p 54251! 08/14 Hourly 400( 145.2 884 158 57 866/) 82231 Overtime I 22 1225 I Tips Charge 998 4 08/21 Hourly 3773 13696 62127 475 5460 451 47393 Tips Charge 484 26 08/28 Hourly 3105 11271 732 0 9601 71 23 5375 551 09 Tips Charge 61936 Gouge .1,, WIlliam N ID 117 Terry Date Withholding Federal DeductIons: Home Dept 5110 FRONT SERVER Pay Frequency Method MO Seu Not Specded Standard His Birlhdate Hire Date Earnings: Inactive Date Rehire Date Laid Rrase DaM Case 1:16-cv-03853-JFM Document 8-3 Filed 12/07/16 Page 10 of 19 0030 1$04-2504 MARKET STREET MANAGEMENT EMPLOYEE EARNINGS RECORD (Requ..t.d Check Dates 01101115- 12/31/15) _______________________________________________________ - NOUNS. UASNINOI. ANO NOIMSUSISMUNTI £ OThNO PAYNINTS - WITSNOLDiNQS N., SuMaC CHICU I SISCI SISULAN OVUST1MU USOULAS OVUNYINI TOTAL OTIIIN SOC INC PNDSAL STATS LOCAL OTNIS PAY DAYS NOUNS NOUNS AMOUNT AMOUNT CANNINUS PAYNINTS * MID TAN YAS TAN 09104 Hourly 21 01! 76 77 42509 32 51 25 itt 29 9 33743 Tips Chug. 346 81 09/Il Hourly 1360 4966 30358 2323 1059 2055 24925 Tips Charge 253 92 09116 Hourly 4000 14520 881S3 6743 9365 6534 65511 Overtime 4 7 25 80 -Tips Charge 71047 09/25 Hourly 4000 14520 86561 6623 91 27 64 10 64406 Overiirrre 003 016 - Tips Charge 720 31 10/02 Hourly 34 4 12498 763 8 5643 7S99 56 2 573 18 Tips Charge 638.84 - 10/09 Hourly 322 11707 6840 5233 6403 5003 51766 Tips Charge! ! 566 98 10/16 Hourly 4000 14520 937 iq 7169 l0387 6964 69190 Overtime 092 5.011 Tips Charge. 786 10/23 Hourly 36 9 134 0 8251 63 12 85 19 6097 61587 Tips Charge 691 10/30 Hourly 33871 122.9 753.3 58 4 7592 56 19 57286 Tips Charge I 640 41' This Hourly 100387 3644.04 Period Training 50 20 ] 401 60 I Total Overtime 15281 83191 Tipi Charge 11822.26 This Pet1 105407 1528 2186790 83191 219510 S l360.97 2130 74M13 1653229 I - ___. - M318% i6088 -- - ....... - i______ ---- -I----.- _________________________-.- _____ ____ - -. - I NOUDAY SIVISANCU SICI SICk CUAL VACATION CASN TIPS ICKASOS MOINSCY TI Gouge Jr. William PA Case 1:16-cv-03853-JFM Document 8-3 Filed 12/07/16 Page 11 of 19 EMPLOYEE EARNINGS RECORD 0030 1804-2504 MARKET STREET MANAGEMENT (Requested Check Dates 01/01115 - 12/31/15) HOURS, EARNINOS, *50 RIIMSORSEMENTS S OTSIHR PAYNTS WIflINOLCINOS OSOUCTIONS NET SlIMS CHICK DESCRIPTION SECULAR OVERTIME REGULAR OWSTIMI yotat a OTHER pay SATE NOUNS HOURS AOUNT AOUNT EARNiNGS PAYMINTE tEn Hourly 1107 73 4071 06 2329740 Social Security 141444 PerIod TrOlnIng 60 03 482 70 Medicare 33781 In/al OvertIme IS 28 83 19 Fed Income lix 225653 TIpS ChSr9ed 18710 45, MD Income Tax 168886 This 7329740: 572764 17569/6 Perrod Total: HOLIOAV SIWSAISCI SICK SICK OUSt VACATION CASH TIPS CHAOE TIPS INDIRECT TIPS YTDHOURS PAID YTD EARNINGS PAID 1871045 (R) = Resident! Residency. (N) = Non-resident (E) = Employment Case 1:16-cv-03853-JFM Document 8-3 Filed 12/07/16 Page 12 of 19 Attachment C Case 1:16-cv-03853-JFM Document 8-3 Filed 12/07/16 Page 13 of 19 EMPLOYEE EARNINGS RECORD Page 2of 5 0030 1804-2504 MARKET STREET MANAGEMENT (Requested Check Dates 01/01/15 - 12/31/15) HOURS, EARNINGS, rrro REIMBURSF ENTS & OTVFR PAYMENTS WHHOLPINGS DEDUCTIONS NET__________ REIMB& ________ _________ _______ _________ HSAEE - CHECK DESCR REGULAR OVERTIME REGULAR OVERTIME TOTAL OTHER SOC SEC FEDERAL STATE LOCAL OTHER INDIVIDUAL PAY DATE HOURS HOURS AMOUNT AMOUNT EARNINGS PAYMENTS MED TAX TAX TAX 01/02 Salary 769.2: 769.2 58.8 65.2 42.3 602.80 01/09 Salary 769.Z 769.2 58.8 65.2 42.3 602.79 01/16 Salary 769.2: 769.2 58.8 65.2 42.3 602.79 01/23 Salary 769.2: 769.2 58.8 65.2 42.3 602.79 01/30 Salary 769.2: 769.2 58.8 65.2 42.3 602.80 02/06 Salary 769.2 769.2 58.8 65.2 42.3 602.80 02/13 Salary 769.2 769.2 56.81 65.2 42.3 602.78 02/20 Salary 769.2 769.2 58.8 65.2 42.3 602.80 02/27 Salary 769.2 769.2: 58.8 65.21 42.3 602.80 03/06 Salary 769.2 769.2: 56.9 61.51 40.3 25.0 585.39 03/13 Salary 769.2 769.2: 56.9: 61.51 40.31 25.0 585.40 03/20 Salary 769.2 769.2: 56.9 61.51 40.31 25.0 585.39 03/27 Salary 769.2 769.2: 56.9: 61.51 40.3l 25.0 585.40 04/03 Salary 7692 769.2: 56.9: 61.51 40.31 25.0 585.40 04/10 Salary 769.2 769.2: 56.9: 61.51 40.3/ 25.0 585.40 04/17 Salary 769.2 769.2: 56.9 61.51 40.3/ 25.0 585.39 04/24 Salary 769.2 769,2: 56.9 61.51 40.3! 25.0 585.39 05/01 Salary 769,2: 769.2 56.9 61.51 40.3! 25.01 585.40 05/08 Salary 769.2: 769.2 56.9 61.51 40.3! 25.01 585.40 05/15 Salary 769.2: 769.2 56.9 61.51 40.3 25.01 585.39 05/22 Salary 769.2: 769.2 56.9 61.51 40.3' 25.01 585.40 05/29 Salary 769.2: 769.2 56.9 61.51 40.3' 25.0/ 585.40 06/05 Salary 769.2: 769.2 56.9 61.51 40.3 25.0/ 585.40 06/12 Salary 769.2: 769.2 569 61.51 40.3 25.0/ 585.40 RUDOLPH, LYNDSAY R ID LYOI Term Date: Withholding Federal: Deductions: Home Dept: 5108 FOH MANAGEMENT Pay Frequency: Weekly Method: MD: HSA EE Indivi $25.00, Every Pay Period Sex: Female Standard Hrs: Birthdate: Rate 1 / Salary: Hire Date: Earnings: Inactive Date: Rehire Date: Last Raise Date: Case 1:16-cv-03853-JFM Document 8-3 Filed 12/07/16 Page 14 of 19 EMPLOYEE EARNINGS RECORD Page 3 of 5 0030 1804-2504 MARKET STREET MANAGEMENT (Requested Check Dates 01/01/15 - 12/31/15) - HOURS, EARNINGS. AND REIMBURSEMENTS & OTHER PAYMENTS WITHHOLDINGS DEDUCTIONS NET__________ REIMB & __________ __________ _______ __________ HSA EE CHECK DESCR REGULAR OVERTIME REGULAR OVERTIME TOTAL OTHER SOC SEC FEDERAL STATE LOCAL OTHER INDIVIDUAL PAY DATE ________ HOURS HOURS AMOUNT AMOUNT EARNINGS PAYMENTS A MED TAX TAX TAX 06/19 Salary 769.2: 769.2 56.9 61.51 40.3 25.01 585.38 06126 Salary 769.2: 769.2 56.9 61,51 40.3 25.01 585.40 07/03 Salary 769,2: 769.2 56.9 61.51 40.3 25.01 585.40 07/10 Salary 769,2: 769.2 56.9 61.51 40.3 25.01 585.40 07/17 Salary 769.2: 769.2 56.9 61.51 40.3 25.0' 585.39 07/24 Salary 769.Z 769.2 56.9 61.51 40.3 25.0' 585.40 07/31 Salary 769.2: 769.2 56.9 61.51 40.3 25.0' 585.40 08/07 Salary 769.2: 769.2 56.9 61.51 40.3 25.0' 585.39 08/14 Salary 769,2: 769.2 56,9: 61.51 40.3 25.0 585.40 08/21 Salary 769,2: 769.2 56.9 61.51 40.3 25.0 585.39 08/28 Salary 769.2: 769.2 56.9: 61.51 40.3 25.0' 585.40 09/04 Salary 769.2 769.2 56.9: 61.51 40.3 25.0' 585.40 09/11 Salary 769.2 769.2 56.9: 61.51 40.3 25.0 585.40 09/18 Salary 769.2 769.2 56.9 61,51 40.3 25.0 585.39 09/25 Salary 769.2 769.2 56.9 61.51 40.3 25.0 585.40 10/02 Salary 865.3 865.31 64.21 75.9 47.8 25.0 652.31 10/09 Salary 865.3 865.31 64.31 75,9 47.8 25.0 652.30 10/16 Salary 865.3 865.31 64,21 75.9 47.8 25.0 652.32 10/23 Salary 865.3 865.31 64.21 75.9 47,8 25.0 652.31 10/30 Salary 865.3 865.31 64.21 75.9 47.8 25.0 652.31 11/06 Salary 865.3 865.31 64.21 75,9 47.8 25.0 652,31 11/13 Salary 865.3 865.31 64.2: 75.9 47.8 25.0 652.32 11/20 Salary 865.3 865.31 64.3' 75.9 47.8 25.0 652.30 11/27 Salary 865.3 865.31 64.2; 75.9 47.8 25.0 652.32 RUDOLPH, LYNDSAY R Soc Sec#: Case 1:16-cv-03853-JFM Document 8-3 Filed 12/07/16 Page 15 of 19 EMPLOYEE EARNINGS RECORD Page 4 of 5 0030 1804-2504 MARKET STREET MANAGEMENT (Requested Check Dates 01/01/15 - 12/31/15) _________ HOURS, EARNINGS, AND REIMBURSEMENTS & OTHER PAYMENTS W'ThHOLDINGS DEDUCTIONS NET__________ REIMB & __________ _______ HSA EE CHECK DESCR REGULAR OVERTIME REGULAR OVERTIME TOTAL OTHER SOC SEC FEDERAL STATE LOCAL OTHER INDIVIDUAL PAT DATE HOURS HOURS AMOUNT AMOUNT EARNINGS PAYMENTS MED TAX TAX TAX 12/04 Salary 865.31 865.3 64.2 75.9 47.8 ______ 25.01 652.31 12/11 Salary 865.31 865.3 64.3 75.9 47.8 25.01 652.30 12/18 Salary 865.31 865.3 64.2 75.9 47.8 25.01 652.32 12/24 Salary 865.31 865.3 64.2 75.9 47.6 25.01 652.31 12/31 Salary 865,31 865.3 64.2 75.9 47.8 25.01 652.31 This Salary 42115.29 Period Total This Per 42115.29 42115.29 S 2542.95 3495.8OMD 1100.00 32119.39 ________ _______ __________ ________ M 594.72 2262.43__________ __________ _________ _________ _______ _________ _________________________________________ _________ RUDOLPH, LYNDSAY R Soc Sec#: Case 1:16-cv-03853-JFM Document 8-3 Filed 12/07/16 Page 16 of 19 EMPLOYEE EARNINGS RECORD Page 5of 5 0030 1804-2504 MARKET STREET MANAGEMENT (Requested Check Dates 01/01/15 - 12/31/15) Case 1:16-cv-03853-JFM Document 8-3 Filed 12/07/16 Page 17 of 19 EMPLOYEE EARNINGS RECORD Page 2 of 3 0030 1804-2504 MARKET STREET MANAGEMENT (Requested Check Dates 01/01/16 - 12131/16) HOURS. EARNINGS, AND REIMBURSEMENTS & OTHER PAYMENTS WITHHOLDINGS DEDUCTIONS NET________ ____________________ REIMBA _________ _______ _________ HSAEE __________ - CHECK DESCR REGULAR OVERTIME REGULAR OVERTIME TOTAL OTHER SOC SEC FEDERAL STATE LOCAL OTHER INDIVIDUAL PAY DATE HOURS HOURS AMOUNT AMOUNT EARNINGS PAYMENTS + MED TAX TAX TAX 01/08 Salary 865.31 865.3 64.2 75.6 47.8 25.01 _________________________________________ __________ 652.65 01/15 Salary 865,31 865.3 64.2 75.6 47.8 25.01 652.65 01/22 Salary 865.31 865.3 64.2 75.6 47.8 25.01 652.65 01/29 Salary 865.3: 865.3 64.2 75.6 47.8 25.01 652.66 02/05 Salary 865.3: 865.3 64,3 75.6 47.8 25.0' 652.64 02/12 Salary 865.3: 865.3 64.21 75.6 47.8 25.0' 652.66 02/19 Salary 865.3: 865,3 64.21 75.6 47.8 25.0' 652.65 02/26 Salary 865.3 865.3 64.21 75.6 47.8 25.0 652.65 03/04 Salary 865.3 865.3 64,2l 75.6 47.8 25.0 652.65 03/11 Salary 865.3 865.31 6431 75.61 47.8 25.0 652.64 03/18 Salary 865.3 865.31 64.21 75.61 47.8 25.0 652.66 03/25 Salary 865.3 865.31 64.21 75.61 47.8 25.0 652.65 04/01 Salary 1153.8 1153.81 86.3: 131.61 70.21 25.0 840.64 04/08 Salary 1153.8 1153.81 86.31 131.61 70.21 25.0 840.63 04/15 Salary 1153.8 1153.8: 86.31 131.61 70.21 25.0 840.63 04/22 Salary 1153.8 1153.8: 86.3' 131.61 70.21 25.0 840.63 04/29 Salary 1153.8 1153.8 86.3' 131.61 70.21 25.0 840.63 05/06 Salary 1153.8 1153.8. 86.3 131.61 70.21 25.0 840.64 This Salary 17307.66 Period Total This Per 17307.66 17307,66 5 104517 1697.16MD 450.00 12875.61 M 244,44 995.28_________ _______ __________ ________ __________ __________ _________ _________ _______ _________ ________________________________________ __________ RUDOLPH, LYNDSAY R ID LYO1 Term Date: Withholding Federal: Deductions: Soc Sec#: Home Dept: 5108 FOH MANAGEMENT Pay Frequency: Weekly Method: MD' HSA EE Indivi $25.00, Every Pay Period Sex: Female Standard Hrs: Birthdate: Rate 1 / Salary: Hire Date: Earnings: Inactive Date: Rehire Date: Last Raise Date: Case 1:16-cv-03853-JFM Document 8-3 Filed 12/07/16 Page 18 of 19 EMPLOYEE EARNINGS RECORD Page 3 of 3 0030 1804-2504 MARKET STREET MANAGEMENT (Requested Check Dates 01/01116 - I 2/31/16) Case 1:16-cv-03853-JFM Document 8-3 Filed 12/07/16 Page 19 of 19 DECLARATION OF LIZ REAP Pursuant to 28 U.S.C. § 1746, I declare as follows: 1. I, Liz Reap am over eighteen years of age, a resident of Maryland and have personal knowledge of all contained in this declaration. 2. I was a bartender for the Family Meal restaurant for the period relevant to this case. 3. As the bartender, my duties included waiting on customers, taking orders and making beverages for customers. I also provided beverages to other wait staff who may take the order directly from the customer. 4. I was a key holder and counted the money in the drawer at the end of the shift. I had the key in order to open or close the restaurant. 5. I did not make the ultimate decisions regarding hiring, discipline or firing of employees. I did not make decisions regarding the compensation paid to employees and I did not keep records related to the employees of Family Meal. 6. I did assist with ordering bar supplies. 7. I was compensated on an hourly rate for my bartender duties and I did participate in the tip pool. I only received tips through my paycheck; never in cash. I SOLEMNLY AFFIRM under the penalties of perjury that the content of the foregoing declaration is true and correct. Executed on this __ day of December 2016 ______________________________ Liz Reap Exhibit 3 Case 1:16-cv-03853-JFM Document 8-4 Filed 12/07/16 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Northern Division LUCAS GREGORI, et al. * Plaintiffs * CIVIL NO. 16-03853 JFM v. * MARKET STREET MANAGEMENT * LLC * Defendant * * * * * * * * * * * * ORDER UPON CONSIDERATION of Defendant’s Motion to Dismiss Plaintiffs’ Complaint or in the Alternative Motion for Summary Judgment, the Memorandum in Support thereof, and Plaintiffs’ Opposition thereto, it is this ___________ day of ____________, 2016, hereby ORDERED that the Motion to Dismiss Plaintiffs’ Complaint or in the Alternative Motion for Summary Judgment be and hereby is GRANTED; and it is further ORDERED that Plaintiffs’ Complaint is dismissed, with prejudice. IT IS SO ORDERED. The Honorable J. Frederick Motz U.S. District Court for the District of Maryland cc: Gregg Cohen Greenberg Case 1:16-cv-03853-JFM Document 8-5 Filed 12/07/16 Page 1 of 1