United States District Court, D. Arizona
AMENDED MEMORANDUM OF DECISION AND ORDER MEMORANDUM OF DECISON AND ORDER
STEPHEN M. McNAMEE, District Judge.
Multiple civil actions have been filed under the Fair Labor Standards Act ("FLSA") raising similar legal issues in this District. In the interest of judicial economy, all twenty-eight of these related FLSA cases were transferred to this Court for the purpose of managing, administrating, and resolving them. (See Montijo, Doc. 22; Colunga, Doc. 20; and Sheehan, Doc. 18.) In these transferred civil actions, all of the plaintiffs have the same counsel of record prosecuting their complaints.
For the purpose of resolving similar motions to amend and similar motions for partial or for summary judgment, the Court has combined the above three captioned cases against Defendant Romulus Inc., d/b/a International House of Pancakes ("IHOP"). The Court will deny leave to amend on Plaintiffs' Counts 1 and 2, rule in favor of IHOP on their motions for partial or for summary judgment on Counts 1 and 2, and deny Montijo's motion for partial summary judgment on Count 2.
In each of the above-captioned three related cases, Plaintiffs filed complaints against IHOP. (See Montijo, Doc. 1; Colunga, Doc. 1; and Sheehan, Doc. 1.) In Montijo, Plaintiff then filed a First Amended Complaint ("FAC"). (Montijo, Doc. 23.) Colunga's complaint, Sheehan's complaint, and Montijo's FAC all raise two basic allegations in regard to the minimum wage provisions of the FLSA. (See Montijo, Doc. 23; Colunga, Doc. 1; and Sheehan, Doc. 1.) They allege an FLSA minimum wage violation because IHOP required them to perform non-tipped duties related to their tipped server occupation in excess of 20% of their working time per shift yet paid at the reduced tip credit rate for performing those duties. (Id.) Plaintiffs' examples of non-tipped duties related to their tipped server occupation included the following:
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.
(See, e.g., Montijo, Doc. 23 at 5.) Plaintiffs further allege that they were engaged in working dual jobs for IHOP yet IHOP only paying them at the reduced tip credit rate for performing a non-tipped occupation. (Id.) Plaintiffs allege that they performed non-tipped non-related duties, such as:
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.)
In a previous Order addressing similar FLSA arguments, for the purpose of resolving seven motions to dismiss, the Court combined six (6) plaintiffs suing P.F. Chang China Bistro, Inc. and one plaintiff's complaint against Arriba Mexican Grill. The Court granted defendants' motions and dismissed without prejudice the plaintiffs' minimum wage claims brought under the FLSA. (See, e.g., Schaefer, No. CV 14-185-PHX-SMM, Doc. 31.) The Court also provided the plaintiffs with the opportunity to move the Court for leave to amend their complaint. (See id.) Finally, the Court forwarded a copy of its Order to all of the parties in the remaining transferred cases. (Id.)
Plaintiffs' Motions for Leave to Amend
Following this Court's Order in Schaefer, all three Plaintiffs moved for leave to amend their complaints or FAC. (See Montijo, Doc. 28; Colunga, Doc. 30; and Sheehan, Doc. 24.) The Court has combined the above-captioned three related cases for the purpose of resolving Plaintiffs' similar motions for leave to amend, and subsequent related motions. The Court has reviewed all of Plaintiffs' motions for leave to amend. (See Montijo, Doc. 28; Colunga, Doc. 30; and Sheehan, Doc. 24.) In Plaintiffs' pending motions for leave to amend, Montijo's proposed SAC and Colunga's and Sheehan's proposed FAC, they all assert the same first two counts. (Id.) In Count 1, alleging a violation of the FLSA's minimum wage provision, they assert a dual jobs claim alleging that they performed non-tipped labor related to their tipped server occupation in excess of 20% of their workweek duties, including:
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.
(See, e.g., Montijo, Doc. 28-1 at 5.)
In Count 2, also alleging a violation of the FLSA's minimum wage provision, they assert a dual jobs claim asserting that they were performing non-tipped labor unrelated to their tipped occupation, including "sweeping carpet; cleaning and organizing the booster seats and high chairs; moving carpets and sweeping and mopping floors; cleaning and restocking the restrooms; cleaning walls; cleaning booths; completing the side work chart; and cleaning windows." (Id. at 16.)
Both Montijo and Colunga assert a third count for unpaid wages under the FLSA in their proposed amended complaints. (See Montijo, Doc. 28-1, Colunga, Doc. 24-1.)
IHOP opposes amendment of Counts 1 and 2 contending that the proposed FAC and SAC fail to state a minimum wage violation under the FLSA, and therefore granting amendment to file Plaintiffs' proposed complaints would be futile. (Montijo, Doc. 33; Colunga, Doc. 34; and Sheehan, Doc. 27.) IHOP contends that this is not a dual job situation under the Department of Labor ("DOL") regulations, but rather a situation in which a server-a tipped employee-performed tasks generally assigned to the server occupation at IHOP's restaurants. (See, e.g., Montijo, Doc. 33 at 5.)
Plaintiffs replied in support. (Montijo, Doc. 34; Colunga, Doc. 35; and Sheehan, Doc. 28.) Even though they were tipped employees, Plaintiffs assert that they were required to perform tipped labor and non-tipped labor related to their server occupation while being paid the tip credit rate and exceeding 20% of their workweek duties. (Id.) Plaintiffs therefore claim that they were working dual jobs yet not properly paid minimum wage for work performed outside the server occupation, thus violating the FLSA. (Id.) Plaintiffs further maintain that their performance of non-tipped labor unrelated to their tipped occupation also states a dual jobs FLSA minimum wage violation. (Id.) For both dual jobs Counts, they rely on the DOL regulation defining when you are a dual job employee, 29 C.F.R. § 531.56(e), as interpreted by the DOL Field Operations Handbook, sub-regulation § 30d00(e), which asserts that you become a dual jobs employee when a substantial part of your duties, or 20%, is performed on non-tipped duties. Plaintiffs assert that deference is owed to DOL's sub-regulation, citing Auer v. Robbins, 519 U.S. 452, 461-62 (1997).
Relevant Undisputed Facts
1. All of the Plaintiffs were servers working for IHOP and assigned generally to the graveyard shifts. For the Plaintiffs their graveyard shifts start times varied between 8 p.m. and 11 p.m and ending between 5 a.m and 7 a.m. (Montijo, Docs. 32 at 2, 32-1 at 18-43; Colunga, Docs. 33 at 1-2, 33-1 at 21-50; Sheehan, Docs. 26 at 1-2, 26-1 at 32-69.)
2. Upon hire at IHOP, all Plaintiffs were employed under IHOP's Server Job Description and received training materials for performing the Server position, which included performance of required side work as specified. (Montijo, Docs. 30 at 2, 30-1 at 32-70; Colunga, Docs. 29 at 1-2, 29-1 at 31-68; Sheehan, Docs. 23 at 1-2, 23-1 at 19-56.)
3. Plaintiffs as tipped employees under the FLSA were paid the Arizona minimum wage of $7.80 an hour, which was higher than the federal minimum wage of $7.25 an hour. IHOP paid tipped employees based on the Arizona tip credit of $3.00 an hour, higher than the federal tip credit of $2.13 an hour. (Montijo, Docs. 30 at 2, 30-1 at 8; Colunga, Docs. 29 at 2, 29-1 at 8; Sheehan, Docs. 23 at 1, 23-1 at 3.)
4. All Plaintiffs received minimum wage payments for the workweeks in which they were employed by IHOP. (Montijo, Docs. 30 at 2, 30-1 at 8; Colunga, Docs. 29 at 2, 29-1 at 8; Sheehan, Docs. 23 at 1, 23-1 at 3.)
5. As servers, Plaintiffs performed various duties, including taking orders from customers, responding to customer questions or requests, bringing food to customers, ensuring that their drinks were refilled, and otherwise ensuring a superior customer experience, sweeping or cleaning floors in the dining area, lobby, or bathroom, cleaning and filling condiment dispensers, rolling silverware, restocking the beverage line, cleaning and organizing the condiment station, cleaning walls, cleaning bathrooms, cleaning and organizing high chairs and booster seats, and restocking the to go station. (See, e.g., Montijo, Docs. 30 at 2 ¶ 5, 32 at 2.)
6. In their positions as servers on the graveyard shift, IHOP required Plaintiffs to regularly and consistently perform tasks that included sweeping the carpet; clean sugar caddies, syrups, and salt and pepper shakers; wash cups in the dishwasher; re-stock the beverage line; clean and maintain the salad bar; clean and organize the condiment station; clean and maintain the pass bar; wash coffee pots and place them on tables; sweep and mop floors; roll silverware; clean and organize high chairs and booster seats; clean restrooms; scrub walls; and perform other duties as assigned. See, e.g., Montijo, Docs. 31 at 3-4, 30-1 at 21-25.)
7. In Montijo's and Colunga's answers to interrogatories, they estimated the time they spent on their various side duties. (Montijo, Doc. 30-1 at 25-26; Colunga, Doc. 29-1 at 25-26.) They estimated that they spent approximately 10 to 20 minutes each shift cleaning and restocking restrooms, and approximately 45 minutes to an hour deep cleaning the restrooms, which only occurred 3 or 4 times during their time of employment with IHOP (Montijo-7 and ½ months, Colunga, 1 year, 3 months, Sheehan, 1 year, 7 months). (Id. at 26.) In Sheehan, Plaintiff did not provide specific time estimates regarding her performing the side duties. (Sheehan, Doc. 23-1 at 14.)
IHOP's Motions for Summary Judgment
At the same time that Plaintiffs moved for leave to amend and lodged proposed amended complaints, IHOP moved for partial summary judgment in Montijo on Counts 1 and 2, and for summary judgment in both Colunga and Sheehan, with supporting statements of facts. (Montijo, Docs. 29, 30; Colunga, Doc. 28, 29; and Sheehan, Doc. 22, 23.) Plaintiffs have responded and IHOP has replied. (Montijo, Docs. 31, 32 and 35, 36; Colunga, Docs. 32, 33, and 36, 37; and Sheehan, Docs. 25, 26 and 29, 30.) Subsequently, in Montijo, ...