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Roberto Marroquin v. Gmri

December 16, 2011


The opinion of the court was delivered by: Cecilia M. Altonaga United States District Judge


THIS CAUSE came before the Court on Defendant, GMRI, Inc. d/b/a Olive Garden's ("Defendant['s]") Motion for Summary Judgment ("Motion") [ECF No. 33], filed on November 8, 2011. In the Motion, Defendant seeks summary judgment on Plaintiff, Roberto Marroquin's ("Plaintiff['s]") claims of owed minimum wages, overtime wages, and retaliation under the Fair Labor Standards Act ("FLSA"). On November 25, 2011, Plaintiff filed his Response [ECF No. 35] to Defendant's Motion. Defendant filed its Reply [ECF No. 36] on December 5, 2011. The Court has considered the parties' written submissions and the applicable law.


Defendant hired Plaintiff to work as a server in one of Defendant's restaurants on April 19, 2010.*fn2 (See Def.'s Statement of Undisputed Facts ("SUF") ¶ 5 [ECF No. 34]). Plaintiff was employed there until his termination on February 15, 2011. (See id. ¶ 69). Plaintiff alleges several claims against Defendant, including: (a) failing to pay Plaintiff minimum and overtime wages; and (b) wrongfully terminating Plaintiff in retaliation for his complaints to Defendant about FLSA violations. (See SMFO).

A. Minimum Wages

Plaintiff, working as a server, was a tipped employee. (See SUF ¶ 6). While employed by Defendant, he was paid an hourly wage supplemented by tips. (See id. ¶ 7). Defendant took the maximum amount of "tip credit" from Plaintiff's wages. (See id. ¶ 8). A tip credit means that, under the FLSA, employers are allowed "to offset the minimum wage of an employee who customarily and regularly receives tips." (Mot. 10). While working as a tipped employee, Plaintiff was paid $4.23 per hour, plus tips. (See SUF ¶ 9). Plaintiff disputes qualifying as a tipped employee because "Defendant never explained to Plaintiff that the reason why he was being paid a reduced minimum wage was because he was going to receive tips." (SMFO ¶ 9). As a non-tipped employee, therefore, Plaintiff contends he should not have had his wages reduced by a tip credit. (See id.). Defendant, by contrast, claims it notified Plaintiff of his status when it handed him an employee handbook containing information about tipped employees and related credits. (See Reply 6--7).

In addition, Plaintiff asserts he was "required to attend pre-shift meetings that lasted an average of one hour[,]" for which he was never paid. (SMFO ¶ 2). "Defendant instructed Plaintiff and other employees not to clock in for these pre-shift meetings." (Id. ¶ 3). Defendant refutes this allegation, claiming instead that Plaintiff was paid $7.25 - required minimum wage under the FLSA*fn3 - for the only two pre-shift meetings held during Plaintiff's employment. (See SUF ¶ 14).

B. Overtime Wages

Plaintiff also asserts he "worked six double shifts throughout his employment." (SMFO ¶ 8). Each shift, lasting "five hours[,]" caused him to exceed forty hours worked in a week, thereby entitling him to overtime wages of one and one-half times his normal wage. (Id.; Resp. 8). Defendant disagrees, asserting Plaintiff's payroll records indicate he worked only four double shifts during his employment, none of which caused his weekly total to exceed forty hours. (See Mot. 13). Defendant maintains Plaintiff, therefore, "never worked overtime" and is not entitled to overtime wages. (SUF ¶ 32).

C. Walk-Outs

Plaintiff avers Defendant improperly charged him for "walk-outs[;]" i.e., restaurant customers who leave without paying the bill. (Resp. 7). Plaintiff claims he is therefore entitled to reimbursement for amounts "charged as an employee meal and taken from his tips." (Id.). Defendant contests this assertion on the basis that Plaintiff's payroll records clearly indicate Plaintiff "never paid for any walk-outs." (SUF ¶ 18).

D. Plaintiff's Termination

1. Defendant's Policy

Defendant's Team Member Handbook has a policy that states:

Personal conduct should reflect respect and dignity toward guests, fellow employees, vendors, and management. The following behaviors are examples of unacceptable personal conduct that violates our Core Values and the commitment to compatibility with your co-workers and guests. These are examples of behaviors that will lead to severe disciplinary action, up to and including termination:

Disregarding or refusing to follow a manager's instructions;

Failure to cooperate with any investigation; Quarreling, fighting, or using abusive language;

Willfully damaging company property or property of others;

Threatening others;

Embarrassing guests (by returning tips, for example). (SUF ¶ 46) (emphasis in original).

2. Tip Incident

On February 14, 2011, Plaintiff had an incident with a guest regarding the appropriate amount of gratuity to leave. Allegedly, when one of Plaintiff's customers was about to pay for the meal, he asked Plaintiff "what was a good tip[?]" (SMFO ¶ 12). In response, Plaintiff wrote down "good? 18%" on the guest's check. (Id. ¶ 13). The customer then "gave Plaintiff his credit card and cash and Plaintiff asked George, one of his managers . . . how to get this tip because his customer was willing to pay it." (Id. ¶ 14). "George agreed to put in the 18% . . . and told Plaintiff that if a customer asks what is a good tip, to tell the customer." (Id. ¶¶ 15--16).

Defendant states that suggesting gratuity violates company policy. (See SUF ΒΆ 60). Instead, Plaintiff "should have simply told the guest that tips were up ...

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