Roberson v. Metro Corral Partners, Llc

MOTION to dismiss for failure to state a claim

M.D. Fla.June 22, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION MARIAH ROBERSON, Plaintiff, v. METRO CORRAL PARTNERS, LLC, d/b/a GOLDEN CORRAL, Defendant. Civil Action No.: 6:17-cv-01008-GAP-GJK DEFENDANT’S MOTION TO DISMISS COUNTS I AND II OF PLAINTIFF’S AMENDED COMPLAINT AND MEMORANDUM OF LAW IN SUPPORT Defendant, Metro Corral Partners, LLC d/b/a Golden Corral (Defendant), moves to dismiss counts I and II of the Plaintiff’s Amended Complaint (Motion). For the reasons set forth below, the Motion should be granted. Introduction When Congress speaks through legislation, it means what it says. “[I]t does not, one might say, hide elephants in mouseholes.” Whitman v. Am. Trucking Associations, 531 U.S. 457, 468 (2001). The Plaintiff asserts three causes of action, two of which ignore clear statutory language, and, in the case of Count I, seeks an unconstitutional, elephant-sized, expansion of the Fair Labor Standards Act (FLSA) that violates the separation of powers, the life breath of our Constitution. Because “[i]t is emphatically the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), the challenged counts should be dismissed with prejudice by this Court. Congress, the only branch of the federal government Constitutionally-empowered to make laws, enacted the FLSA, which says nothing about the percentage of time a restaurant Case 6:17-cv-01008-GAP-GJK Document 11 Filed 06/22/17 Page 1 of 16 PageID 110 2 server may spend on “non-tipped” duties. The wage and hour regulations adopted by the United States Department of Labor (DOL) are similarly silent on this topic. The only mention of a percentage limitation on the amount of non-tipped work is found in the DOL’s Field Operations Handbook (Handbook), which was adopted by the DOL without any of the Constitutionally- required processes for laws and regulations. Count I thus rests on a handbook “rule,” not a statute or a regulation, purporting to limit a restaurant server’s non-tipped duties to 20% of his or her working time—the so-called “80/20 rule.” This Count fails because applying the rule violates the fundamental separation of powers upon which our Constitution is based. The Handbook, moreover, is merely an internal guide for the DOL’s wage and hour investigators and, to that end, expressly states it “is not used as a device for establishing interpretative policy.” Despite this clear limitation, the “80/20 rule” in the Handbook is being used by the Plaintiff to interpret (and override) express language in the FLSA. In her view, the Handbook creates a new law granting rights to employees that does not exist in the FLSA or any other federal law or regulation. The FLSA on its face unambiguously requires, for an employer to pay the lower “tip- credit wage” (an hourly-rate less than the stated federal minimum wage), that a tipped employee (1) receive $30 in tips each month and (2) earn the federal minimum wage for all hours worked (when combining the tip-credit wage and any tips earned). The DOL’s regulations are similarly clear. Because the FLSA and the DOL regulations are clear, there is no basis for the Court to interpret the FLSA otherwise or to grant deference to the Handbook. In other words, the Court should decline the Plaintiff’s invitation to exalt a handbook rule to the power of law when the applicable statute and regulations are unambiguous. Case 6:17-cv-01008-GAP-GJK Document 11 Filed 06/22/17 Page 2 of 16 PageID 111 3 Count II also should be dismissed because the Plaintiff was not employed in dual occupations and clearly held only one job: server. The tasks she relies on to claim dual-job status are part and parcel of server duties recognized by both the DOL and the courts. The Plaintiff therefore fails to allege a cause of action based on dual jobs. Procedural Background On January 11, 2017, the Plaintiff filed a four-count complaint (Complaint) against the Defendant in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, alleging violations of the Florida Minimum Wage Act (FMWA) and the Florida Constitution. [Doc. 1 Ex. A]. Specifically, the Complaint alleged counts for: (1) Minimum Wage Violation of Fla. Stat. § 448.110 - Incidental Non-Tipped Labor; (2) Minimum Wage Violation of the Florida Constitution – Incidental Non-Tipped Labor; (3) Florida Minimum Wage Act- Dual Occupation; (4) Florida Minimum Wage Act - Unpaid Wages. Id. On February 8, 2017, the Defendant filed its Motion to Dismiss the Complaint, arguing that, although stated in the DOL’s Handbook, there is no bright-line rule under Florida law (or even FLSA, to which Florida law looks) requiring a tipped employee to spend less than twenty percent of her time on non-tipped labor. [Doc. 1 Ex. C]. In addition, the Defendant argued that the Complaint should be dismissed because Metro Corral Partners, LLC did not employ Ms. Roberson, and therefore was not a proper party defendant. Id. The state court judge dismissed the Complaint without prejudice, declining to adopt the Handbook and noting that the Handbook states on its face that it is not interpretive policy, and on the basis that the Defendant had been improperly named. On May 5, 2017, the Plaintiff filed her Amended Complaint (Amended Complaint) alleging three counts, this time including federal claims: (1) Dual Occupation- Incidental Non- Case 6:17-cv-01008-GAP-GJK Document 11 Filed 06/22/17 Page 3 of 16 PageID 112 4 tipped Labor, in violation of the FLSA, 29 U.S.C. § 201 et seq. and the FMWA; (2) Dual Occupation – Labor Unrelated to Tipped Occupation, in violation of the FLSA and FMWA; and (3) Unpaid Wages, in violation of the FMWA. [Doc. 1. Ex. B]. The Defendant removed this action to this Court on June 6, 2017. [Doc. 1]. The Amended Complaint is plagued by many of the same issues as the original Complaint, and Counts I and II should be dismissed with prejudice. MEMORANDUM OF LAW I. Count I Should Be Dismissed Because The Defendant Did Not Violate The FLSA, The FLSA Is Clear And Unambiguous And Does Not Need Interpretation, And The DOL Handbook Is Not Entitled To Deference. A. The FLSA Does Not Require Application Of The 80/20 Rule And There Is Thus No FLSA Violation. “The Supreme Court has . . . made it clear that an employment practice does not violate the FLSA unless the FLSA prohibits it.” Montijo v. Romulus Inc., No. CV-14-264-PHX-SMM, 2015 WL 1470128, at *8 (D. Ariz. Mar. 30, 2015) (citing Christensen v. Harris Cnty., 529 U.S. 576, 588 (2000)). Indeed, in Christensen, the Supreme Court afforded no deference to an opinion letter in which the DOL took the position that an employer could compel the use of compensatory time only when the employee agreed in advance. See Christensen, 529 U.S. at 588. The Supreme Court made clear that “[u]nless the FLSA prohibits respondents from adopting its policy, petitioners cannot show that [their employer] has violated the FLSA.” Id. (emphasis in original). As in Christensen, there is no provision in the FLSA prohibiting the alleged employment policy with which the Plaintiff takes issue. All the FLSA says about tipped employees is that they must make minimum wage, including tips, they must receive $30 a month in tips, and they must receive notice that their employer is taking the tip credit. See 29 U.S.C. §§ 203(m), (t). Case 6:17-cv-01008-GAP-GJK Document 11 Filed 06/22/17 Page 4 of 16 PageID 113 5 Instead, to find any provision suggesting servers must spend 20% or less of their time on non- tipped duties, one must look to the DOL’s Handbook, a document that, by its own language, is not to be used for interpretive policy. See Handbook § 30d00(e); https://www.dol.gov/whd/FOH/ (last accessed June 15, 2017). In sum, the Plaintiff has made vague allegations of 20% violations with no citation to any provision of the FLSA the Defendant allegedly violated. See Am. Compl. at ¶¶ 16- 17, 20-21. The Plaintiff has not alleged she makes less than $30 per month in tips to state a violation of Sections 203(m) and (t). The Plaintiff has failed to allege, therefore, that she is not a “tipped employee.” Because the Plaintiff fails to plead sufficient facts to support the allegation that the Defendant violated the FLSA by improperly claiming the tip credit, Count I should be dismissed. B. The Statute And The Regulations Are Not Ambiguous, and Should Be Followed. The Court must first look to the plain language of the FLSA when interpreting the statute. See Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982). The language of the FLSA, and its implementing regulations, are facially unambiguous, and should be followed. The FLSA specifically permits employers to a take a credit toward wages paid to tipped employees for the tips they are paid. See 29 U.S.C. § 203(m). Under the FLSA, an employee is a “tipped employee” when “engaged in an occupation in which he customarily and regularly receives more than $30 a month in tips.” 29 U.S.C. § 203(t). In defining “customarily and regularly,” the DOL regulations explain: “If it is known [the employee] always receives more than the stipulated amount each month, as may be the case with many employees in occupations such as those of waiters . . . the employee will qualify and the tip credit provisions . . . may be applied.” 29 C.F.R. § 531.57 (June 29, 2012) (emphasis added). Because the statute is Case 6:17-cv-01008-GAP-GJK Document 11 Filed 06/22/17 Page 5 of 16 PageID 114 6 unambiguous, there is no need to defer to the Handbook or any regulation. See Josendis v. Wall to Wall Residence Repairs Inc., 662 F.3d 1292, 1320 (11th Cir. 2011) (“Where the statutory language is clear, agency regulations have no effect.”). Nothing in either the FLSA or the DOL’s regulations requires an employee to spend less than 20% of his or her time on non-tipped duties in order for an employer to be entitled to the tip credit. The Handbook’s 80/20 rule was not subject to the formal rulemaking process and, therefore, does not have the force and effect of law. See Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015) (quoting Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 99 (1995)). “Interpretive rules do not have the force and effect of law and are not accorded that weight in the adjudicatory process.” Id. (internal quotations omitted). Relying on the Handbook is even less appropriate insofar as it plainly acknowledges that it “is not used as a device for establishing interpretative policy.” See https://www.dol.gov/whd/FOH/; Probert v. Family Centered Servs. of Alaska, Inc., 651 F.3d 1007, 1012 (9th Cir. 2011) (finding the Handbook was not “proper source of interpretive guidance” based on its acknowledgment that it is not used to establish interpretive policy) (citing Christensen, 529 U.S. at 587) (internal quotations and citation omitted). The 80/20 rule has another fatal, practical flaw: it is unworkable. Trying to apply the rule would require courts to calculate non-tipped duties on a minute-by-minute basis—an untenable and burdensome result not likely intended by Congress or feasible for judicial resolution. See Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 880 (2014) (“it is most unlikely Congress meant [for an FLSA provision] to convert federal judges into time-study professionals.”); Pellon v. Bus. Representation Int’l, Inc., 528 F. Supp. 2d 1306, 1314 (S.D. Fla. 2007) , aff’d, 291 F. App’x 310 (11th Cir. 2008) 1 (“Permitting Plaintiffs to scrutinize every day minute by minute, attempt to 1 The Eleventh Circuit affirmed “on the basis of the district court’s well-reasoned order.” Pellon v. Bus. Representation Int’l, Inc., 291 F. App’x 310, 311 (11th Cir. 2008). While not binding on this Court, an Case 6:17-cv-01008-GAP-GJK Document 11 Filed 06/22/17 Page 6 of 16 PageID 115 7 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.”). The Plaintiff is a tipped employee regardless of the amount of time she may have spent on non-tipped duties, and the Defendant properly took the tip credit with respect to the Plaintiff. In order to find the Defendant liable under the 20% provision of the Handbook, this Court would have to conclude that an agency, by creating the Handbook, has the ability to formulate additional burdens on employers not required by statute. Nothing in the FLSA (or even in its implementing regulations) prohibits the alleged practice of paying the Plaintiff the tip-credit wage and permitting the Plaintiff to spend more than 20% of her work time on non-tipped duties. There is, therefore, no cognizable claim stated under the FLSA. See Christensen, 529 U.S. at 588. C. The DOL’s Handbook Is Not Entitled To Deference. Intending to defend individual liberties against an overreaching government, the Framers of our Constitution created a system providing for a separation of powers. See The Federalist, No. 51 (C. Rossiter ed. 1961) (J. Madison). The Founders understood the “accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.” Id., No. 47 (J. Madison). To avoid this consolidation of power, the Constitution identifies three distinct powers, and assigns them to three separate branches of government. See Dep’t of Transp. v. Ass’n. of Am. R.R., 135 S. Ct. 1225, 1240 (2015) (Thomas, J., concurring in the judgment). The Framers then ensured each branch had “the necessary constitutional means and personal motives to resist encroachments of the others.” The Federalist, No. 51 (J. Madison). In doing so, the Framers unpublished decision of the Eleventh Circuit is persuasive authority. See 11th Cir. R. 36-2. Case 6:17-cv-01008-GAP-GJK Document 11 Filed 06/22/17 Page 7 of 16 PageID 116 8 conferred upon the judiciary, and not the executive, the responsibility to interpret laws, which is the “proper and peculiar province of the courts.” The Federalist, No.78 (Alexander Hamilton); see Perez, 135 S. Ct. at 1220 (“The Framers expected Article III judges to engage . . . by applying the law as a ‘check’ on the excesses of both the Legislative and Executive Branches.”) (Thomas, J., concurring); see also Philip Hamburger, Law and Judicial Duty 543-48 (2008). The Supreme Court has confirmed these fundamental principles throughout American jurisprudence. See, e.g., INS v. Chadha, 462 U.S. 919, 946 (1983) (“[The] principle of separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the document that they drafted in Philadelphia in the summer of 1787.”). In recent history, however, the executive branch has overstepped these constitutional safeguards. Indeed, administrative agencies have evolved into a “fourth branch of government,” which has consolidated legislative, executive, and judicial powers into one “branch” not subject to the Framers’ fail-safes. See City of Arlington v. FCC, 133 S. Ct. 1863, 1877-78 (2013) (Roberts, C.J., dissenting); see generally Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231 (1994); Philip Hamburger, Vermeule Unbound, 94 Tex. L. Rev. See also 204, 209 (2016) (“Although administrative power is widely claimed to be a modern solution to the complexity of modern society, it more clearly is a revival of the ancient and recurring danger of absolute power.”). While agencies are permitted to interpret statutes when enforcing them, they are not permitted to create additional requirements, which, in effect, create laws not imposed or permitted by statute. See Montijo, 2015 WL 1470128, at *9 (“[E]xecutive agencies such as DOL violate the separation of powers principle when they enact ‘laws’ under the guise of providing informal commentary to a regulation”). Indeed, “[t]o defer to the agency’s position would be to Case 6:17-cv-01008-GAP-GJK Document 11 Filed 06/22/17 Page 8 of 16 PageID 117 9 permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.” See Christensen, 529 U.S. at 587. Here, the Handbook does not explain an ambiguous regulation. Instead, it adds a new requirement for employers to follow in order to use the tip credit. See Montijo, 2015 WL 1470128 at *11 (holding that instead of interpreting 29 C.F.R. § 531.56(e) (June 29, 2012), Section 30d00(e) of the Handbook “arbitrarily adds additional requirements” to the regulation). Allowing § 30d00(e) to take effect by giving it deference would “set aside the constitutional principles of separation of powers.” See id., at *12. For all these reasons, there is no basis for extending deference to the DOL’s Handbook in this case. 1. The DOL’s Handbook Is Not Entitled To Chevron Deference. In order to be entitled to Chevron deference, a regulation (not an interpretive policy) must have gone through notice-and-comment rulemaking. See Chavez v. T&B Mgmt., LLC, 2017 WL 2275013, at *6 (M.D.N.C. May 24, 2017). Chevron deference is applied “when an agency properly exercises their authority, expressly or implicitly delegated by Congress, to interpret an ambiguous statute, and then promulgate rules and regulations carrying the force of law.” Josendis, 662 F.3d at 1320 (citing Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843-44 (1984)). An ambiguity in the statute, alone, does not automatically entitle an agency’s interpretation to Chevron-style deference. See Gonzales v. Oregon, 546 U.S. 243, 258 (2006) (“Chevron deference . . . is not accorded merely because the statute is ambiguous and an administrative official is involved.”). Chevron deference is not warranted because the Handbook does not carry the force and effect of law. It did not, for example, go through a notice and rulemaking process and was not arrived at after a formal adjudication. Christensen, 529 U.S. at 587; see also Montijo, 2015 WL 1470128 (finding Section 30d00(e) not entitled to deference because it was “not arrived at by Case 6:17-cv-01008-GAP-GJK Document 11 Filed 06/22/17 Page 9 of 16 PageID 118 10 formal adjudication or notice and comment rulemaking,” and giving deference allows “agencies to side-step the onerous rulemaking process . . .”). Chevron deference is therefore unwarranted. 2. The DOL’s Handbook Is Not Entitled To Auer Deference. Auer deference is afforded to an agency’s interpretation of its own ambiguous regulations unless they are “plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997) (internal quotation and citation omitted). Auer deference is not warranted, however, “when there is reason to suspect that the agency’s interpretation ‘does not reflect the agency’s fair and considered judgment on the matter in question.’” Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166 (2012) (quoting Auer, 519 U.S. at 462). That is exactly the problem with the DOL Handbook. The DOL, to meet Auer’s deference standard, “must have intended for the [Handbook] to represent its official interpretation of § 513.56(e).” Chavez, 2017 WL 2275013, at *6 (emphasis added). But that cannot be the case here because the Handbook clearly states it is not meant to establish interpretive policy. A rule cannot reflect “fair and considered judgment” when it is merely an internal guide for DOL employees made available to the public under the Freedom of Information Act. Moreover, the regulation interpreting the relevant (i.e., the “wage” and “tipped employee”) FLSA provisions is not ambiguous. As explained in Section I(B) above, 29 U.S.C. § 203(t) defines a tipped employee for purposes of the tip credit provided in 29 U.S.C. § 203(m) (defining “wage”). To the extent the statutory definition of “tipped employee” may be considered ambiguous, 29 C.F.R. § 531.57 unequivocally explains when an employee is considered a “tipped employee” for purposes of the tip credit. The Plaintiff might argue that her claims survive under the dual jobs regulation (29 U.S.C. § 531.56(e)). If so, her argument is unavailing. Section 531.56(e) clearly “identifies an Case 6:17-cv-01008-GAP-GJK Document 11 Filed 06/22/17 Page 10 of 16 PageID 119 11 employee performing two or more entirely distinct, non-overlapping jobs.” See Kirchgessner v. CHLN, Inc., 174 F. Supp. 3d 1121, 1128 (D. Ariz. 2016) (finding § 531.56(e) “does not identify this ‘duties’ dichotomy or cap incidental duties at 20%”). This regulation is not needed to define “wage” or “tipped employee” and is, therefore, unnecessary to determine the applicability of the tip credit. The DOL Handbook, which purports to require not just that a tipped employee make $30 per month in tips, but that the employee also spend less than 20% of his or her time on non- tipped duties, adds a requirement not already in existence under the statute. See Montijo, 2015 WL 1470128, at *9. The 20% provision provided by the Handbook, therefore, is inconsistent with the plain meaning of the statute, and is not entitled to deference. 2 See Auer, 519 U.S. at 461; see e.g., Malivuk v. Ameripark, LLC, No. 1:15-CV-2570-WSD, 2016 WL 3999878, at *4 (N.D. Ga. July 26, 2016), appeal filed Sept. 27, 2016 (affording no deference to 29 C.F.R. § 531.52 (May 5, 2011), and citing cases holding the same in light of regulation’s contradiction of 29 U.S.C. § 203(m) on its face). See also Montijo, 2015 WL 1470128, at *9. 3 2 Notably, Irvine v. Destination Wild Dunes Mgmt., Inc., 106 F. Supp. 3d 729, 732 (D.S.C. 2015) and Goodson v. OS Rest. Servs., LLC, No. 5:17-CV-10, 2017 WL 1957079 (M.D. Fla. May 11, 2017) are the only cases that expressly noted the disclaimer included in the Handbook and, regardless, deferred to the 80/20 rule. Importantly, the only defendant in Irvine only argued that, because the Handbook was not subject to notice-and-comment rulemaking, it was not entitled to Auer deference. See id. at 733. The requirement that a rule undergo notice-and-comment rulemaking to be entitled to deference only applies to Chevron-style deference. See Christensen, 529 U.S. at 587. Similarly, the Goodson court noted the defendant’s argument regarding the Handbook, but failed to address it, instead relying on the Fast decision and concomitantly ignoring Pellon. See generally Goodson, 2017 WL 1957079. In Goodson, the court focused on an ambiguity in the dual jobs regulation to grant deference to the Handbook. See id. Neither Goodson nor Irvine reconciles the Handbook’s disclaimer language with their grants of deference. Here, the Defendant has demonstrated the 20% rule violates the plain language of the FLSA and the DOL’s regulations, and the dual jobs regulation is not necessary to interpret 29 U.S.C. §§ 203(m) and (t). 3 The DOL’s inconsistent interpretation of the Handbook similarly undermines any reliance on Skidmore. See section I(C)(3), infra. Case 6:17-cv-01008-GAP-GJK Document 11 Filed 06/22/17 Page 11 of 16 PageID 120 12 3. The Handbook Does Not Have The “Power To Persuade,” And Thus Is Not Entitled To Skidmore Deference. Skidmore deference is afforded to interpretations, rulings, and opinions of the agency only to the extent they are persuasive. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); see also Gonzales, 546 U.S. at 256. In determining whether Skidmore deference is appropriate in reviewing an interpretive rule or guidance, the Courts look to “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade . . . .” Skidmore, 323 U.S. at 140. In Gonzalez, the Supreme Court found the Attorney General’s interpretive rule regarding the use of controlled substances to assist in suicide was not entitled to Skidmore deference. In doing so, the Court noted the Attorney General’s “lack of expertise” and apparent lack of “consultation with anyone outside the Department of Justice who might aid in a reasoned judgment.” Gonzales, 546 U.S. at 269. The DOL Handbook is used by its employees when conducting investigations. Similar to the Attorney General’s lack of consultation in Gonzalez, there is no indication that the Secretary of Labor consulted with anyone prior to arbitrarily including a 20% requirement in the Handbook. Finally, it is critical to note that the Handbook was not intended to be published as a rule. It is an internal DOL document that was only published pursuant to the agency’s “obligation under FOIA to make available administrative staff manuals and instructions to staff that affect members of the public . . . and as a public service to provide public access to information regarding DOL programs.” See Gonzalez, 546 U.S. at 269. It is not particularly persuasive authority, such that this Court should permit the Plaintiff to establish a cause of action based exclusively on informal guidance contained in it. 4 4 Significantly, the DOL issued an opinion letter to purportedly clarify “confusion and inconsistent application,” of the twenty percent rule. U.S. Dep’t of Labor, January 16, 2009 Opinion Letter, FLSA 2009-23 at p.2, available at https://www.dol.gov/whd/opinion/FLSA/2009/2009_01_16_23_FLSA.pdf. Case 6:17-cv-01008-GAP-GJK Document 11 Filed 06/22/17 Page 12 of 16 PageID 121 13 Id. As such, the DOL Handbook should not be afforded any deference. II. Count II Of The Complaint Also Fails Because The Plaintiff Has Not Alleged That She Was Engaged in Dual Occupations. A. The Plaintiff Was Employed As A Server. The Plaintiff’s dual occupation claim for labor unrelated to tipped occupation is meritless. In discussing when an employee is considered to be dually occupied, DOL’s regulations specifically provides the example that a “waitress who spends part of her time cleaning and setting tables, toasting bread, making coffee and occasionally washing dishes or glasses” and “the counterman who also prepares his own short orders or who, as part of a group of countermen, takes a turn as a short order cook for the group” are not considered to be employed in dual occupations, as “such related duties in an occupation that is tipped” do not need to be tip-producing by themselves. See 29 C.F.R. § 531.56(e). The DOL’s regulation explicitly contemplates that “related duties in an occupation that is a tipped occupation need not by themselves be directed toward producing tips.” Id. In the present case, although the Plaintiff claims she was employed in dual jobs, she had one occupation: server. See Am. Compl. at ¶ 7 (“Plaintiff was employed as a Server by Defendant. . . .”). The Plaintiff does not provide any allegation or fact that can lead to the conclusion that she was employed in dual occupations for which she was not paid the minimum wage. Instead, in Count II and throughout the Amended Complaint, the Plaintiff simply recites legal elements, with no factual allegations to buttress her claims. Count II should be dismissed on this basis alone. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to The Letter provides: “We do not intend to place a limitation on the amount of duties related to a tip- producing occupation that may be performed, so long as they are performed contemporaneously with direct customer-service duties and all other requirements of the Act are met.” Id. The January 2009 Opinion Letter has been withdrawn. Notably, the DOL’s changing and fickle interpretation of the rule it created supports the conclusion that deference to the agency’s whims is inappropriate. Case 6:17-cv-01008-GAP-GJK Document 11 Filed 06/22/17 Page 13 of 16 PageID 122 14 dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”) (internal citation and quotations omitted). The Plaintiff alleges that she was required to spend time on the following tasks “unrelated to tipped labor:” stocking supplies (i.e., glasses, straws, napkins, coffee cups and saucers) and organizing or moving silverware to the front of the house, Am. Compl. at ¶ 29; cleaning and wiping tables, chairs and booths, and aligning, straightening, taking down, or putting up chairs, placing trash cans in designated areas, sweeping and mopping floors, checking restrooms for cleanliness and supplies, cleaning restrooms and condiment holders, Am. Compl. at ¶ 31; performing setup for banquets, special events, or large parties, Am. Compl. at ¶ 33; and seating customers at other server stations or performing host duties, Am. Compl. at ¶35. Regardless of whether these alleged duties were tipped, they were clearly related to and intertwined with the occupation of server. See Schaefer v. Walker Bros. Enterprises, 829 F.3d 551, 553-55 (7th Cir. 2016) (servers who “wash and cut strawberries, mushrooms, and lemons; prepare applesauce and jams by mixing them with other ingredients; prepare jellies, salsas, and blueberry compote for use; restock bread bins and replenish dispensers of milk, whipped cream, syrup, hot chocolate, and straws; fill ice buckets; brew tea and coffee; wipe toasters and tables” were tasks tipped employees could perform at the tip-credit rate); Pellon, 528 F. Supp. 2d at 1313 (skycaps were not engaged in dual occupations, as “tasks that allegedly violate the minimum wage are intertwined with direct tip-producing tasks throughout the day”); 29 C.F.R. § 531.56(e); U.S. Dep’t of Labor, Opinion Letter Fair Labor Standards Act (FLSA), 1980 WL 141336, at *1 (tipped employees who “clean the salad bar, place the condiment crocks in the cooler, clean and stock the waitress station, clean and reset the tables (including filling cheese, salt and pepper shakers) and vacuum the dining room carpet, after the restaurant is closed” Case 6:17-cv-01008-GAP-GJK Document 11 Filed 06/22/17 Page 14 of 16 PageID 123 15 perform duties which “constitute tipped employment within the meaning of the regulation”). The DOL’s express acknowledgment, through 29 C.F.R. § 531.56(e), that there are non- tipped duties related to serving, demonstrates that side work is inherent to the server occupation. See Montijo, 2015 WL 1470128, at *10 (“the server occupation inherently includes side work” based on inclusion of incidental duties in § 531.56(e)). Simply engaging in non-tipped duties does not divide a tipped occupation into two occupations such that the employer is no longer entitled to the tip credit. Count II of the Amended Complaint should be dismissed with prejudice. 5 CONCLUSION The DOL’s internal employee guide is not to be revered as law, and instructs its readers accordingly. The FOH therefore cannot justify the 20% cap on non-tipped labor the Plaintiff proposes, or the improper judicial monitoring, rejected in Sandifer and Pellon, of servers’ week- by-week, hour-by-hour, and minute-by-minute work performance. Additionally, the applicable regulation makes plain that servers completing their side work are not engaged in two occupations: they are simply servers. For these legal, practical, and constitutional reasons, the Court should dismiss Counts I and II of the Amended Complaint with prejudice. Dated: June 22, 2017. 5 Some courts find an ambiguity in the language of § 531.56, which does not address the tip credit wage, but rather the dual occupation issue. See Section II, supra. Those courts believe the regulation is sufficiently ambiguous to support the Handbook’s “interpretation,” despite the fact that the Handbook on its face says it does not constitute an interpretive policy. See, e.g., Fast v. Applebee's Int'l, Inc., 638 F.3d 872, 880 (8th Cir. 2011); Ide v. Neighborhood Rest. Partners, LLC, No. 1:13-CV-509, 2015 WL 11899143, at *6 (N.D. Ga. Mar. 26, 2015) (relying on decision in Fast); Crate v. Q's Rest. Grp. LLC, No. 8:13-CV-2549, 2014 WL 10556347, at *4 (M.D. Fla. May 2, 2014); Goodson, LLC, 2017 WL 1957079; cf. Chavez v. T&B Mgmt., LLC, 2017 WL 2275013 (M.D.N.C. May 24, 2017). These cases have not specifically addressed some of the deference and the constitutional arguments raised in this motion, and they do not reflect the growing concern in the courts over excessive deference to federal agencies that undermines the separation of powers. Case 6:17-cv-01008-GAP-GJK Document 11 Filed 06/22/17 Page 15 of 16 PageID 124 16 Respectfully submitted, s/Kevin W. Shaughnessy Kevin W. Shaughnessy Florida Bar No.: 0473448 kshaughnessy@bakerlaw.com Ashley M. Schachter Florida Bar No.: 0119374 aschachter@bakerlaw.com BAKER & HOSTETLER LLP 200 South Orange Avenue, Suite 2300 Post Office Box 112 Orlando, Florida 32802-0112 Telephone: (407) 649-4000 Facsimile: (407) 841-0168 COUNSEL FOR DEFENDANT CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 22, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notice of electronic filing to the following: Michael L. Grossman, Esq., Cohen Grossman, Attorneys At Law 350 N. Lake Destiny Road Maitland, Florida 32751 plegrossman@itsaboutjustice.LAW Danielle@itsaboutjustice.LAW elawfiling@itsaboutjustice.LAW s/Kevin W. Shaughnessy Kevin W. Shaughnessy Case 6:17-cv-01008-GAP-GJK Document 11 Filed 06/22/17 Page 16 of 16 PageID 125