Palacios v. Hartman & Tyner, Inc.

Filing 84

ORDER granting 71 Motion for Summary Judgment. Signed by Judge Beth Bloom on 12/15/2014. (jua)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 13-CIV-61541-BLOOM/Valle

IDANIA PALACIOS, et al.,
Plaintiffs.
v.
HARTMAN AND TYNER, INC.,
d/b/a Mardi Gras Gaming, a Florida
corporation,
Defendant.
_________________________________/
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court upon Defendant Hartman & Tyner, Inc. d/b/a Mardi Gras
Gaming’s Motion for Summary Judgment, ECF No. [71]. The Court has reviewed the motion,
all supporting and opposing filings, and the record in the case, and is otherwise fully advised in
the premises.

For the reasons that follow, Defendant’s Motion for Summary Judgment is

granted.
I. BACKGROUND
On July 17, 2013, Plaintiff Idania Palacios commenced this action alleging violations of
the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., on behalf of herself and all
other similarly situated employees (collectively, “Plaintiffs”) of Defendant Hartman & Tyner,
Inc. d/b/a Mardi Gras Gaming (“Defendant”). See Compl., ECF No. [1]. Defendant operates a
commercial poker room at its casino in Broward County, Florida. See Def. SOF, ECF No. [73]
at ¶ 3; Pl. SOF in Opp., ECF No. [77] at ¶ 3. At all material times, Plaintiffs were employed by
Defendant as poker dealers at the casino. ECF No. [73] at ¶ 1; ECF No. [77] at ¶ 1. Plaintiffs
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were treated as “tipped” employees, meaning that rather than receive the statutorily-required
minimum wage, Plaintiffs’ compensation was composed of a reduced hourly wage and tips. See
Compl., ECF No. [1] at ¶ 8; Def. SOF, ECF No. [73] at ¶¶ 8, 28-29; Pl. SOF in Opp., ECF No.
[77] at ¶¶ 8, 28-29. Thus, Defendant took a “tip credit” of $3.02 per hour against the applicable
minimum wage, resulting in a direct hourly wage between $4.23 and $4.91 per hour. Def. SOF,
ECF No. [73] at ¶¶ 8, 28; Pl. SOF in Opp., ECF No. [77] at ¶¶ 8, 28. Moreover, Plaintiffs were
required to contribute 10% of their tops to a “tip pool,” which is shared with other poker dealers
and poker room employees, including hosts and hostesses, chip runners,1 floor representatives,
and cashiers. Def. SOF, ECF No. [73] at ¶ 7; Pl. SOF in Opp., ECF No. [77] at ¶ 7. Certain
managerial positions that indisputably did not involve face-to-face interactions with customers,
such as shift managers and poker room directors, were not included in the pool. Def. SOF, ECF
No. [73] at ¶ 9; Pl. SOF in Opp., ECF No. [77] at ¶ 9.
This method of tip pooling is common in the Florida poker industry. Def. SOF, ECF No.
[73] at ¶ 10; Pl. SOF in Opp., ECF No. [77] at ¶ 10. Plaintiffs do not contend that pooling is per
se violative of the FLSA; rather, Plaintiffs debate the inclusion of cashiers in the tip pool,
asserting that this is a non-tipped position and therefore its inclusion in the pool taints the
practice.2 See Opp., ECF No. [76]; see also Compl., ECF No. [1] at ¶¶ 11-12. According to

1

This position was phased out in September 2013. ECF No. [73] at ¶ 4; Pl. SOF in Opp., ECF
No. [77] at ¶ 4.
2

The Complaint alleges that the tip credit is invalid based on the inclusion of cashiers, as well as
“floor representatives.” Compl., ECF No. [1] at ¶ 11. Defendant seeks summary judgment
based on the assertion that both cashiers and floor representatives are “tipped” positions under
the FLSA. See Mot., ECF No. [71]. However, Plaintiffs have abandoned their argument that
floor representatives qualify as tipped employees, admitting in their responsive filings that the
floor representative position involves significant customer service and regularly receive
voluntary tips directly from customers, as well as failing to address Defendant’s arguments
pertaining to that position. See Pl. SOF, ECF No. [73] at ¶¶ 16-23; Def. SOF in Opp., ECF No.
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Plaintiffs, because the tip pool includes non-tipped positions, the tip credit does not comport with
the FLSA and Plaintiffs are entitled to compensation at the standard minimum wage. See
Compl., ECF No. [1] at ¶¶ 9-13.

In response, Defendant asserts that cashiers are tipped

positions, citing to deposition testimony and other sworn testimony indicating that cashiers
regularly received tips directly from customers. See Def. Ex., ECF No. [72] at 32:4-10, 36:1337:4, 41:2-10; Maidment Aff., id. at 5 ¶ 7, 6 ¶ 9, 9 ¶ 18. Defendant moves for summary
judgment on the grounds that cashiers are tipped employees under the FLSA, making the tip pool
valid. See Mot., ECF No. [71].
II. SUMMARY JUDGMENT STANDARD
A party may obtain 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(a). The parties may support their positions by citation to the record, including inter
alia, depositions, documents, affidavits, or declarations. Fed. R. Civ. P. 56(c). An issue is
genuine if “a reasonable trier of fact could return judgment for the non-moving party.”
Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is material if it
“might affect the outcome of the suit under the governing law.” Id. (quoting Anderson, 477 U.S.
at 247-48). The Court views the facts in the light most favorable to the non-moving party and
draws all reasonable inferences in his favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir.
2006). “The mere existence of a scintilla of evidence in support of the [non-moving party’s]
position will be insufficient; there must be evidence on which a jury could reasonably find for
the [non-movant].” Anderson, 477 U.S. at 252. Further, the Court does not weigh conflicting
[77] at ¶¶ 16-23. Accordingly, the Court will progress with an analysis solely on the issue of
whether a cashier’s inclusion corrupts the tip pool.
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evidence. See Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir. 2007) (quoting Carlin
Commc’n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352, 1356 (11th Cir. 1986)).
The moving party shoulders the initial burden of showing the absence of a genuine issue
of material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Once this burden is
satisfied, “the nonmoving party ‘must do more than simply show that there is some metaphysical
doubt as to the material facts.’” Ray v. Equifax Info. Servs., L.L.C., 327 F. App’x 819, 825 (11th
Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). Instead, “the non-moving party ‘must make a sufficient showing on each essential
element of the case for which he has the burden of proof.’” Id. (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)). Accordingly, the non-moving party must produce evidence,
going beyond the pleadings, and by its own affidavits, or by depositions, answers to
interrogatories, and admissions on file, designating specific facts to suggest that a reasonable
jury could find in his favor. Shiver, 549 F.3d at 1343. Even “where the parties agree on the
basic facts, but disagree about the factual inferences that should be drawn from those facts,”
summary judgment may be inappropriate. Warrior Tombigbee Transp. Co., Inc. v. M/V Nan
Fung, 695 F.2d 1294, 1296 (11th Cir. 1983).
III. DISCUSSION
The FLSA sets a federal statutory minimum wage requiring employees to be paid a wage
of no less than $7.25 per hour. See 29 U.S.C. § 206(a)(1). An employer may reduce the hourly
wage of its employees so long as the difference is recovered in tips. See 29 U.S.C. § 203(m);
Pellon v. Bus. Representation Int’l, Inc., 528 F. Supp. 2d 1306, 1309 (S.D. Fla. 2007) aff’d, 291
F. App’x 310 (11th Cir. 2008). Employees whose hourly wage is reduced in this manner are
referred to as “tipped employees” under the Act, which specifically defines the term as “any

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employee engaged in an occupation in which he customarily and regularly receives more than
$30 a month in tips.” 29 U.S.C. § 203(t).
The difference between the statutory minimum wage and the amount directly paid to a
tipped employee is commonly referred to as a “tip credit.” Pellon, 528 F. Supp. 2d at 1309; 29
C.F.R. § 531.51. The plain language of § 203(m) indicates that there are two requirements an
employer must meet in order to claim a tip credit: (1) the employee must be informed by the
employer of the provisions of the subsection; and (2) all tips received by the employee must be
retained by the employee.3 29 U.S.C. § 203(m); Garcia v. Koning Restaurants Int’l, L.C., No.
12-CV-23629, 2013 WL 8150984, at *4 (S.D. Fla. May 10, 2013) (“If an employer fails to
satisfy either of these preconditions, the tip credit may not be claimed, regardless of whether
employees suffered actual economic harm as a result.” (quotation and citation omitted)); Goldin
v. Boce Grp., L.C., 773 F. Supp. 2d 1376, 1379 (S.D. Fla. 2011) (“The FLSA clearly lays out the

3

The relevant portion of § 203(m) reads in its entirety:
In determining the wage an employer is required to pay a tipped employee, the
amount paid such employee by the employee’s employer shall be an amount equal
to-(1) the cash wage paid such employee which for purposes of such
determination shall be not less than the cash wage required to be paid such
an employee on August 20, 1996; and
(2) an additional amount on account of the tips received by such employee
which amount is equal to the difference between the wage specified in
paragraph (1) and the wage in effect under section 206(a)(1) of this title.
The additional amount on account of tips may not exceed the value of the tips
actually received by an employee. The preceding 2 sentences shall not apply with
respect to any tipped employee unless such employee has been informed by the
employer of the provisions of this subsection, and all tips received by such
employee have been retained by the employee, except that this subsection shall
not be construed to prohibit the pooling of tips among employees who customarily
and regularly receive tips.

29 U.S.C. § 203(m) (emphasis added).
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prerequisites an employer must meet in order to claim the tip credit. There are only two: (1) the
employer must inform the employee that the employee will be paid the reduced minimum wage;
and (2) all tips received by the employee must be retained by the employee.” (citation omitted)).
If these requirements are not met, then the tip credit is invalid.
Although all tips received by the employee must be retained by the employee, the pooling
of tips for later redistribution among the tipped employees qualifies as retention under the Act.
See 29 U.S.C. § 203(m) (noting that the prerequisites “shall not be construed to prohibit the
pooling of tips among employees who customarily and regularly receive tips”). The Code of
Federal Regulations confirms that tip pooling is not prohibited:
Where employees practice tip splitting, as where waiters give a
portion of their tips to the busboys, both the amounts retained by
the waiters and those given the busboys are considered tips of the
individuals who retain them, in applying the provisions of section
3(m) and 3(t). Similarly, where an accounting is made to an
employer for his information only or in furtherance of a pooling
arrangement whereby the employer redistributes the tips to the
employees upon some basis to which they have mutually agreed
among themselves, the amounts received and retained by each
individual as his own are counted as his tips for purposes of the
Act. . . . However, an employer must notify its employees of any
required tip pool contribution amount, may only take a tip credit
for the amount of tips each employee ultimately receives, and may
not retain any of the employees’ tips for any other purpose.
29 C.F.R. § 531.34. If the tip pool is distributed among non-tipped employees, then the tips are
not “retained by the employee,” and the tip credit is invalid. See Guillory v. PF & B Mgmt., LP,
No. CIV.A. H-11-4377, 2013 WL 1181439, at *5 (S.D. Tex. Feb. 27, 2013) report and
recommendation adopted, No. CIV.A. H-11-4377, 2013 WL 1182061 (S.D. Tex. Mar. 20, 2013)
(“If an employer cannot show that the tip pool was distributed solely among customarily and
regularly tipped employees, the employer cannot take a tip credit and must pay its employees the
full minimum wage under the FLSA.”) (citations omitted); Chan v. Triple 8 Palace, Inc., No. 03
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CIV. 6048 (GEL), 2006 WL 851749, at *14 (S.D.N.Y. Mar. 30, 2006) (“In other words,
employers are not merely barred from taking the tip credit if they share in the tip pool, but they
are barred from taking the tip credit if any person who does not ‘customarily and regularly
receive tips’ shares in the tip pool.” (citation omitted)); Davis v. B & S, Inc., 38 F. Supp. 2d 707,
714–15 (N.D. Ind. 1998) (“[T]he employer may still take advantage of the tip credit for
employees who participate in a tip pooling agreement, so long as those employees are employees
who ‘customarily and regularly receive tips’” . . . . (citation omitted)); see also Opinion Letter,
Fair Labor Standards Act (FLSA), 1997 WL 998047, at *2 (Dep’t of Labor Nov. 4, 1997) (“[A]n
employer will lose the benefit of the exception from the tip-retention requirement if tipped
employees are required to share their tips with employees who do not customarily and regularly
receive tips . . . .”).
The parties do not take issue regarding whether Plaintiffs were placed on notice of the
reduced wages. Rather, the dispute concerns the second requirement: Plaintiffs claim that by
including non-tipped employees in the tip pool they did not effectively retain their tips, and,
therefore, the tip credit is invalid. Defendant contends that poker room cashiers are tipped
employees as a matter of law and that it is entitled to summary judgment as a result. Thus, a
singular issue is presented, namely, whether Defendant’s poker room cashiers are “tipped
employees” as defined by the FLSA.4
Defendant contends that the Court need not analyze the other aspects of the cashier’s
employment, such as whether they perform customer service functions, simply because it is
indisputable that they receive in excess of $30 per month in tips, satisfying the definition of
“tipped employee” under 29 U.S.C. § 203(t). Plaintiffs counter that this interpretation is too
4

As previously noted, Plaintiffs have abandoned their argument pertaining to whether floor
representatives are “tipped employees” under § 203(t).
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simplistic. According to Plaintiffs, if an employee were to qualify as a “tipped individual” solely
by way of the fact that they receive in excess of $30 per month in tips, without further inquiry,
then that employee’s inclusion in the challenged tip pool makes them eligible for “tipped” status
because the tip pool itself provides the requisite compensation. The limited case law on this
issue is by no means a model of clarity.
Some courts have recognized that allowing for satisfaction of the $30 per month
minimum by tips received from the tip pool is illogical. In Chan, the Southern District of New
York found that this narrow reading leads to absurd results and would render the restriction on
tip sharing “utterly meaningless.” Chan, 2006 WL 851749, at *14 n.22. At first read, the Sixth
Circuit’s Kilgore v. Outback Steakhouse decision appears to disagree. In Kilgore the Sixth
Circuit found that the Act placed no restrictions on the manner in which an employee may satisfy
the $30 requirement, noting that those who receive their tips from a tip pool qualify as
employees who “receive tips” according to Department of Labor regulations and practices, and
that this approach is “consistent with the statutory language, which does not require that an
employee directly receive the requisite amount of tips from customers.” Kilgore v. Outback
Steakhouse of Florida, Inc., 160 F.3d 294, 301 (6th Cir. 1998) (citing 29 C.F.R. § 531.54).
However, the Sixth Circuit acknowledged the mild circuity of this interpretation, and stressed
that inclusion in the tip pool alone would not satisfy the definition of tipped employee under §
203(t), as the statute unequivocally requires not only that the employee receive more than $30 a
month in tips, but also that the employee work “in an occupation in which he customarily and
regularly” receives such compensation. See id. Based on the statutory language, the Sixth
Circuit held that restaurant hosts were engaged in a tipped occupation “because they sufficiently
interact with customers in an industry [] where undesignated tips are common.”

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See id.

Therefore, while the Court in Kilgore noted that inclusion in the tip pool will satisfy the
minimum monetary compensation required for § 203(t) status, it hinted at another requirement:
that the employee perform work that involves more than a de minimus interaction with
customers. See id. at 301-02 (distinguishing hosts from employees who have zero to no contact
with customers such as dishwashers, cooks, or janitors).
This Court and our sister districts have confirmed the reading of Kilgore which allows a
court to examine the interaction the employee has with customers. See Rubio v. Fuji Sushi &
Teppani, Inc., No. 6:11-CV-1753-ORL-37, 2013 WL 230216, at *2 (M.D. Fla. Jan. 22, 2013)
(citations omitted) (noting that “[c]ourts have focused on the extent of an employee’s customer
interaction as a significant factor in determining whether the employee is a customarily tipped
employee”); Ash v. Sambodromo, LLC, 676 F. Supp. 2d 1360, 1369-70 (S.D. Fla. 2009) (“Courts
determining whether an employee is a tipped employee have focused on the amount of customer
interaction.”); Wajcman v. Investment Corp. of Palm Beach, No. 07-80912-CIV, 2008 WL
783741, at *3 (S.D. Fla. Mar. 20, 2008) (citing Kilgore v. Outback Steakhouse of Florida, Inc.,
160 F.3d 294 (6th Cir. 1998)) (“In determining whether an employee is engaged in an occupation
that ‘customarily and regularly’ receives tips for purposes of § 203(t), the focus is properly
drawn to the question of whether the employee performs important customer service functions,
i.e. does the employee have more than de minimis service interaction with customers.”). Thus,
these courts have focused the on both the quantity and quality of the customer interaction. See
Wajcman, 2008 WL 783741, at *4.
Some courts, including this one, have gone so far as to state that “[o]nly where
employees have no customer contact have they been found to fall outside the definition of tipped
employees.” Pellon, 528 F. Supp. 2d at 1315 (citing Myers v. Copper Cellar Corp., 192 F.3d

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546, 550 (6th Cir. 1999) (employees performing food preparation with zero customer interaction
were not “tipped employees”)) (holding that airport skycaps qualify as tipped employees under
the FLSA as “the vast majority of [their] time spent at their job directly results in tips or is
incidental to and stems from activity that directly results in tips”); see also Elkins v. Showcase,
Inc., 237 Kan. 720, 735, 704 P.2d 977, 989 (1985) (bartenders located behind wall and away
from customers performing duty similar to non-tipped cooks ineligible for “tipped employee”
status). Taken out of context, this view is far too parochial. The inquiry is not simply whether
the employee maintains more than a de minimus interaction with customers, but rather, as the
plain language of § 203(t) requires, the employee must be engaged in an occupation which
typically results in the gesture of tipping, receiving in excess of $30 a month in this form of
compensation.
According to Plaintiffs, a court is obligated to determine whether the employee performs
important customer service functions, not simply whether the employee receives $30 in tips, be it
directly or via a tip pool. In support of this contention, Plaintiffs primarily rely on Wajcman v.
Investment Corp. of Palm Beach.5
In Wajcman, poker dealers brought claims under the FLSA alleging that casino floor
supervisors were inappropriately included in a tip pool. Wajcman, 2008 WL 783741, at *1-2.
The defendant in Wajcman took a position similar to that of Defendant here, arguing that “only
those employees who have no customer contact are properly excluded from the definition of
tipped employees.” See id. at *4. In rejecting this contention, the Court opined that at its
extreme, this definition would allow any employee to fall under § 203(t) as long as that
5

Plaintiffs also rely on Chan v. Triple 8 Palace, Inc. out of the Southern District of New York.
As noted, the Chan court recognized the irrationality of allowing the tip pool itself to satisfy the
$30 requirement and explicitly rejected such an interpretation of the statute. See 2006 WL
851749, at *14 n.22. However, the court did not reach the issue presented here.
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employee maintained something more than de minimus contact with customers, and that
permitting these employees to fall into the definition “would render meaningless the statutory
requirement that a ‘tipped employee’ be engaged in an ‘occupation’ that ‘customarily and
regularly’ receives tips.” Id. The problem with the defendant’s construction was that it was too
simplistic; it allowed employees who maintained significant customer interaction to fall within
the definition’s ambit, regardless of whether they were in a position where tips were common.
See id. For example, a security detail or bouncer would undoubtedly have substantial customer
interface, but not be employed in a position that customarily and regularly receives tips. Id. The
Court continued, noting that while positions such as these involve significant consumer
interaction, they are not in a position involving the “exchange of pleasantries or provision of
personal services that ordinarily evokes tipping generosity.” Id. Thus, the Court refocused the
inquiry, indicating that it looked to both the “quantity and quality of the customer interaction.”
Id. Ultimately, the Court found that the defendant had failed to show that there was no genuine
issue of material fact because there were disputed issues pertaining to the quality and quantity of
supervisor-customer interaction. Id. at *4-5.
The submitted evidence clearly supports the assertion that the cashiers receive more than
$30 per month independent of the tip pool. Several of Defendant’s cashiers have indicated that
they regularly receive direct tips from customers, and rarely, if ever, do they leave their shift
with less than $10 in tips. See Def. Ex., ECF No. [72] at 32:4-10 (estimating that she takes home
between $25 and $30 a day in tips), 36:13-37:4 (stating that he has never left work with less than
$10 in tips), 41:2-10 (confirming that cashiers have a tip box located at the counter where
customers sometimes tip). Additionally, Defendant’s human resource director states that “it is
customary throughout the gaming industry for customers to give tips directly to [cashiers]” and

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cashiers “regularly and customarily receive in excess of $30 per month in tips directly from
customers,” which are primarily received when the customer goes to “cash out” after playing.6
Def. Ex., Maidment Affidavit, ECF No. [72] at 5 ¶ 7, 6 ¶ 9, 9 ¶ 18. Plaintiffs do not directly
refute this evidence, nor do they challenge its accuracy.7 Instead, Plaintiffs essentially contend
that the form of the interaction between cashiers and customers is dispositive on the matter. The
Court disagrees.
An inquiry into the nature of the interaction may be relevant to determine tipped status;
however, Wajcman did not purport to make this a requirement in every case.

Plaintiffs’

argument, as presented, essentially requires the Court to modify the language of the statute,
adding a customer service requirement. The statute straightforwardly defines a tipped employee
as one who is “engaged in an occupation in which he customarily and regularly receives more
than $30 a month in tips.” 29 U.S.C. § 203(t). No requirement of customer service is involved.
Whether a position requires customer service may be indicative of whether that position is
6

Defendant’s human resources director also claims to have reviewed the pay records for each
plaintiff, noting that “[e]ach Plaintiff always received more than $30.00 a month in tips in any
month in which they were employed as a Poker Dealer for [Defendant].” ECF No. [72] at 11 ¶
24. However, no pay records are included with the motion.
7

Pointing to a purported Department of Labor report, Plaintiffs conclude that the Department
“has already determined that cashiers locked behind a cage are not to be included in a tip-pool.”
See Pl. SOF, ECF No. [77] at ¶ 11; see also Opp., ECF No. [76] at 8-9. Plaintiffs request that the
Court take judicial notice of this case-dispositive fact based on the alleged report. Fed R. Civ. P.
201(b) provides that a court may take judicial notice of a fact that “is not subject to reasonable
dispute” because it is either (1) “generally known within the trial court’s territorial jurisdiction”
or (2) “can be accurately and readily determined from sources whose accuracy cannot reasonably
be questioned.” Further, Rule 201(d) states that a court “must take judicial notice if a party
requests it and the court is supplied with the necessary information.” Fed. R. Civ. P. 201(d). At
no point does the document provided identify itself as an official Department of Labor report.
Further, even if the report was more identifiable, it would still not necessitate judicial notice, as
the report does not clearly indicate what Plaintiff asserts, namely, that the Department of Labor
has made an official determination of whether cashiers are tipped employees for FLSA purposes.
Accordingly, the Court respectfully declines to take judicial notice of any facts contained in the
document.
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tipped, however, it is not dispositive on the matter. It is simply a relevant fact to consider. Under
circumstances where the challenged position’s tips stem from the tip pool itself, or where no
evidence of direct tipping has been presented, a Court may need to go further in order to
ascertain whether the position is one which customarily and regularly receives tips. However,
where the person is, as a matter of undisputed fact, tipped by patrons, the Court need not look
further because the employment position is indisputably one involving the customary and regular
receipt of tips, simply by virtue of the fact that tipping routinely occurs. It belies logic that an
employee having next to no customer interaction would regularly receive tips from customers.
The case law presented merely attempts to resolve an issue not presented in this case, that
is, situations where direct tips from customers do not occur. Moreover, Wajcman does not
necessitate the conclusion that Plaintiffs seek as the case is factually inapposite. In Wajcman,
there was no indication that the employees in the challenged position received direct tips from
customers, and no evidence was presented on this point. 2008 WL 783741, at *1-2, 4. Instead,
the defendant in Wajcman sought to focus on the customer interactions to demonstrate
compliance with § 203(t). See id. at *3. In light of the utter lack of evidence regarding the
quality of customer interaction and any other evidence of tipping, the court found that summary
judgment was not warranted because there was a disputed genuine issue of material fact
pertaining to the quantity and quality of supervisor-customer interaction with respect to the
challenged employment position. Id. at *3-5 (noting that “there is no evidence tending to show
that the floor supervisors were engaged in services on the floor that were a likely subject of
tipping”). On the contrary, the record here is not so sparse. Defendant has submitted substantial
evidence indicating that cashiers regularly received tips directly from customers, and, most
critically, Plaintiffs do not dispute the fact that cashiers actually received tips directly from

13

Defendant’s customers. Based on the admitted evidence, the Court finds that Defendant’s
cashiers are “engaged in an occupation in which [they] customarily and regularly receives more
than $30 a month in tips” because they received tips in excess of $30 per month from patrons,
and are, therefore, “tipped employees” under 29 U.S.C. § 203(t).
Plaintiffs’ further attempts to inject dispute are unavailing. Plaintiffs assert that cashiers
are “human ATM machines” who provide little to no customer service function, but simply sit in
a locked cage all day. The Court is not persuaded that because cashiers are in a cage, for obvious
security reasons, that it is impossible to have customer interaction. The terminal inquiry is
whether the employee is engaged in a position where he or she customarily receives
compensation in the form of tips that meets the minimum monetary threshold of $30 per month.
The evidence submitted leads to the inescapable conclusion that cashiers “customarily and
regularly” receive tips in excess of $30 a month, as is required by the FLSA’s definition. See 29
U.S.C. § 203(t). Plaintiffs do not dispute the fact that Defendant’s cashiers receive tips from
customers.

The statute does not explicitly require that a tipped employee be primarily

responsible for supplying customer service. Although courts have looked to employee-customer
interaction to determine if the relationship is one that commonly leads to the conveyance of tips,
where there is undisputed evidence that an employee directly received tips from patrons, the
level of customer service provided may ultimately be irrelevant.
IV. CONCLUSION
Defendant’s cashiers are employees “engaged in an occupation in which [they]
customarily and regularly receive[] more than $30 a month in tips,” and are therefore “tipped
employees” under the FLSA. While there may remain a question as to the level of customer
service that cashier’s provide, this factual dispute is not a material one given the undisputed fact

14

that the cashiers receive in excess of $30 per month directly from Defendant’s patrons. Because
cashiers are tipped employees, and Plaintiffs have abandoned their argument pertaining to floor
representatives by failing to respond to those arguments, the Court finds that Defendant’s tip
pool is not in violation of the Act.
For these reasons, it is hereby ORDERED AND ADJUDGED that Defendant Hartman
& Tyner, Inc. d/b/a Mardi Gras Gaming’s Motion for Summary Judgment, ECF No. [71], is
GRANTED.
The Defendant is directed to submit a proposed final judgment no later than December
26, 2014.
DONE AND ORDERED in Fort Lauderdale, Florida, this 15th day of December, 2014.

____________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE

Copies to:
Counsel of Record

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