United States District Court, M.D. Florida, Ocala Division
SUMMARY JUDGMENT ORDER
S. MOODY, JR. UNITED STATES DISTRICT JUDGE
White sued his former employer, Swampy's Bar and Grille,
for failing to pay him minimum wage and overtime. Although
White was a regularly tipped employee, he claims he was
entitled to minimum wage and overtime because Swampy's
was ineligible to rely on the FLSA tip credit. Swampy's
argues that White lacks standing because he has no economic
damages. The Court concludes Swampy's is not entitled to
judgment as a matter of law.
worked as a bartender and waiter at Swampy's from April
2014 through November 2015. White was paid less than minimum
wage, but that in itself was not a violation of the Fair
Labor Standards Act (“FLSA”) because White also
received tips from customers and from a tip pool to which
Swampy's waiters contributed. The tip pool was only to
have been shared between customarily tipped employees, but
White argues that a janitorial employee-a non-customarily
tipped employee-also received money from the tip pool, which
Swampy's denies. Because of this improper distribution of
the tip pool, White argues that Swampy's failure to pay
him minimum wage and overtime was a violation of the FLSA. In
other words, White argues Swampy's cannot rely on the tip
credit when it allowed a non-customarily tipped employee to
share from the tip pool.
moved for summary judgment arguing White lacks standing
because he has no economic damages for two reasons. First,
Swampy's argues that White was paid minimum wage when his
tips are considered. This argument, of course, assumes
Swampy's is entitled to rely on the FLSA tip credit,
which White disputes. Second, Swampy's argues that it
never required White to contribute to the tip pool even
though he occasionally worked as a waiter. Had he been asked
to contribute to the tip pool, Swampy's argues
White's contribution would have been $2, 045.83. And
since $2, 045.83 is greater than the $1, 385.95 White is
claiming in damages, White has no actual economic damages. In
fact, Swampy's argues White received a windfall.
for summary judgment should be granted only when “the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any show
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of
law.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986) (internal quotation marks omitted); Fed.R.Civ.P.
56(c). The existence of some factual disputes between the
litigants will not defeat an otherwise properly supported
summary judgment motion; “the requirement is that there
be no genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The substantive law applicable to the
claimed causes of action will identify which facts are
material. Id. Throughout this analysis, the court
must examine the evidence in the light most favorable to the
nonmovant and draw all justifiable inferences in its favor.
Id. at 255.
party properly makes a summary judgment motion by
demonstrating the absence of a genuine issue of material
fact, whether or not accompanied by affidavits, the nonmoving
party must go beyond the pleadings through the use of
affidavits, depositions, answers to interrogatories and
admissions on file, and designate specific facts showing that
there is a genuine issue for trial. Celotex, 477
U.S. at 324. The evidence must be significantly probative to
support the claims. Anderson, 477 U.S. at 248-49.
Court may not decide a genuine factual dispute at the summary
judgment stage. Fernandez v. Bankers Nat'l Life Ins.
Co., 906 F.2d 559, 564 (11th Cir. 1990). “[I]f
factual issues are present, the Court must deny the motion
and proceed to trial.” Warrior Tombigbee Transp.
Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir.
1983). A dispute about a material fact is genuine and summary
judgment is inappropriate if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. Anderson, 477 U.S. at 248; Hoffman v.
Allied Corp., 912 F.2d 1379, 1383 (11th Cir.1990).
However, there must exist a conflict in substantial evidence
to pose a jury question. Verbraeken v. Westinghouse Elec.
Corp., 881 F.2d 1041, 1045 (11th Cir. 1989).
is not entitled to summary judgment based on either of its
arguments that White has no economic damages. As to the first
argument-that White was paid minimum wage when the tip credit
is considered-the Court concludes there is a disputed issue
of material fact. As to the second argument-that White
received a windfall because the amount of money he claims is
less than the amount he should have contributed to the tip
pool-the Court concludes this argument does not entitle
Swampy's to judgment as a matter of law.
White Was Paid Minimum Wage When Tip Credit
FLSA requires employers to pay employees a minimum wage. 29
U.S.C. § 206(a). But when an employee receives tips,
that wage may include the tips. 29 U.S.C. § 203(m).
“That is, an employer may pay an employee a cash wage
below the minimum wage so long as the employer supplements
the difference with the employee's tips; this is known as
an employer taking a ‘tip credit.'”
Howard v. Second Chance Jai Alai LLC, No.
5:15-CV-200-OC-PRL, 2016 WL 7180243, at *10 (M.D. Fla. Dec.
employer who wishes to use a tip credit toward an
employee's minimum wage must do two things: (1) inform
the employee of the section 203(m) of the FLSA, and (2) allow
the employee to keep all tips they receive, except when tips
are pooled “among employees who customarily and
regularly receive tips.” 29 U.S.C. § 203(m). Thus,
“[i]f an employee is required to share tips with an
employee who does not customarily and regularly receive tips,