Del Rosario Gutierrez v. Galiano Enterprises of Miami et al

Filing 71

ORDER denying 65 Plaintiffs' Motion for Summary Judgment. Signed by Magistrate Judge Edwin G. Torres on 6/7/2019. See attached document for full details. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-24081-Civ-TORRES
OMELIA DEL ROSARIO GUTIERREZ,
ANA M. CASTILLO, CECILA RAMIREZ
BRITO, and all others similarly situated
under 29 U.S.C. 216(b),
Plaintiff,
v.
GALIANO ENTERPRISES OF MIAMI,
CORP., d/b/a GALIANO RESTAURANT,
SULTAN MAMUN,
Defendants.
___________________________________________/
ORDER ON PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Omelia Del Rosario Guiterrez’s, Ana M.
Castillo’s, and Cecila Ramirez’s (collectively, “Plaintiffs”) motion for summary
judgment against Galiano Enterprises of Miami d/b/a Galiano Restaurant (“Galiano
Restaurant”) and Sultan Mamun (“Mr. Mamun”) (collectively, “Defendants”). [D.E.
65]. Defendants responded to Plaintiffs’ motion on May 23, 2019 [D.E. 69] to which
Plaintiffs replied on May 30, 2019. [D.E. 70]. Therefore, Plaintiffs’ motion is now
ripe for disposition. After careful review of the motion, response, reply, relevant
authorities, and for the reasons discussed below, Plaintiffs’ motion is DENIED.1

On April 2, 2018, the parties consented to the jurisdiction of the undersigned
Magistrate Judge. [D.E. 42].
1

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I.

BACKGROUND

Plaintiff filed this action on November 7, 2017 for (1) overtime wages
pursuant to the Fair Labor Standards Act (“FLSA”), (2) federal minimum wage
violations, and (3) Florida minimum wage violations. [D.E. 1]. Plaintiffs allege that
Galiano Restaurant is a company that regularly transacts business in Miami-Dade
County and that Mr. Mamun is a corporate officer/manager of the corporation.
Between approximately 2011 to 2017, Plaintiffs claim that they worked more than
forty hours per week, but that Defendants failed to compensate them as required
under the FLSA. Plaintiffs also allege that they worked for roughly two dollars per
hour in violation of the minimum wage provisions of the FLSA and Florida law.
Because Defendants failed to compensate Plaintiffs for overtime hours and paid
Plaintiffs below the federal and state minimum wage, Plaintiffs request damages,
attorneys’ fees, court costs, and interest.
II. APPLICABLE PRINCIPLES AND LAW
AThe court shall grant 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).
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by: (A) citing to particular parts of materials in
the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory
answers, or other materials; or (B) showing that materials cited do not
establish the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support the fact.

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Fed. R. Civ. P. 56(c)(1). AOn summary judgment the inferences to be drawn from
the underlying facts must be viewed in the light most favorable to the party
opposing the motion.@ Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 597 (1986) (quoting another source).
In opposing a motion for summary judgment, the nonmoving party may not
rely solely on the pleadings, but must show by affidavits, depositions, answers to
interrogatories, and admissions that specific facts exist demonstrating a genuine
issue for trial. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
323B24 (1986). The existence of a mere “scintilla” of evidence in support of the
nonmovant=s position is insufficient; there must be evidence on which the jury could
reasonably find for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986). AA court need not permit a case to go to a jury . . . when the
inferences that are drawn from the evidence, or upon which the non-movant relies,
are >implausible.=@ Mize v. Jefferson City Bd. Of Educ., 93 F.3d 739, 743 (11th Cir.
1996) (citing Matsushita, 475 U.S. at 592B94)).
At the summary judgment stage, the Court’s function is not to “weigh the
evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Anderson, 477 U.S. at 249. In making this determination,
the Court must decide which issues are material. A material fact is one that might
affect the outcome of the case. See id. at 248 (AOnly disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Factual disputes that are irrelevant or unnecessary

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will not be counted.@).

“Summary judgment will not lie if the dispute about a

material fact is >genuine,= that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
III. ANALYSIS
A.

Principles of the FLSA

The FLSA requires employers to pay their employees at least one and a half
times their regular wage for every hour worked in excess of forty per week. See 29
U.S.C. § 207(a)(1). Approximately seventy years ago, the Supreme Court stated
that the “the prime purpose” of the FLSA was “to aid the unprotected, unorganized
and lowest paid of the nation’s working population; that is, those employees who
lacked sufficient bargaining power to secure for themselves a minimum subsistence
wage.” Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707 n.18 (1945). In the decades
since O’Neil, the Eleventh Circuit has followed that principle to counteract the
inequality of bargaining power between employees and employers.

See, e.g.,

Walthour v. Chipio Windshield Repair, LLC, 745 F.3d 1326, 1332 (11th Cir. 2014);
Hogan v. Allstate Ins. Co., 361 F.3d 621, 625 (11th Cir.2004) (same); Lynn’s Food
Stores, Inc. v. United States, 679 F.2d 1350, 1352 (11th Cir.1982) (“Recognizing that
there are often great inequalities in bargaining power between employers and
employees, Congress made the FLSA's provisions mandatory.”); Mayhue’s Super
Liquor Stores, Inc. v. Hodgson, 464 F.2d 1196, 1197 n.1 (5th Cir. 1972).
With these principles in mind, a plaintiff who has worked overtime without
pay may bring a private FLSA action for damages. See 29 U.S.C. § 216(b). An

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unpaid-overtime claim has two elements: (1) an employee worked unpaid overtime,
and (2) the employer knew or should have known of the overtime work. See Allen v.
Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1314–15 (11th Cir. 2007).
“Although a FLSA plaintiff bears the burden of proving that he or she worked
overtime without compensation, . . . [i]t is the employer’s duty to keep records of the
employee’s wages, hours, and other conditions and practices of employment.” Id.
“[I]f an employer has failed to keep proper and accurate records and the employee
cannot offer convincing substitutes,” then “an employee has carried out his burden
if he proves that he has in fact performed work for which he was improperly
compensated and if he produces sufficient evidence to show the amount and extent
of that work as a matter of just and reasonable inference.”

Id. at 1315–16

(quotation marks omitted).
B.

Whether Mr. Mamun was Plaintiffs’ Employer

The first issue is whether Plaintiffs are entitled to summary judgment on
whether Mr. Mamun was their “employer” under the FLSA. An individual cannot
be held “liable for violating the overtime provision of the FLSA unless he is an
‘employer’ within the meaning of the Act.” Alvarez Perez v. Sanford-Orlando Kennel
Club, Inc., 515 F.3d 1150, 1160 (11th Cir. 2008) (citing 29 U.S.C. § 207(a)(1);
Donovan v. Grim Hotel Co., 747 F.2d 966, 971 (5th Cir. 1984)). The FLSA broadly
defines an employer as “any person acting directly or indirectly in the interest of an
employer in relation to an employee.” 29 U.S.C. § 203(d). Whether an individual
falls within this definition “does not depend on technical or ‘isolated factors but

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rather on the circumstances of the whole activity.’” Hodgson v. Griffin & Brand of
McAllen, Inc., 471 F.2d 235, 237 (5th Cir.1973) (quoting Rutherford Food Corp. v.
McComb, 331 U.S. 722, 730 (1947)). “‘[A] corporate officer with operational control
of a corporation’s covered enterprise is an employer along with the corporation,
jointly and severally liable under the FLSA for unpaid wages.’” Patel v. Wargo, 803
F.2d 632, 637-38 (11th Cir. 1986) (quoting Donovan v. Agnew, 712 F.2d 1509, 1511
(1st Cir. 1983)). “‘Operational control means management of day-to-day business
functions such as employee compensation, ‘direct responsibility for the supervision’
of employees, or general operations.’” Torres v. Rock & River Food Inc., 244 F.
Supp. 3d 1320, 1332 (S.D. Fla. 2016) (quoting Baltzley v. Berkley Grp., Inc., 2010
WL 3505104, at *2 (S.D. Fla. Sept. 3, 2010) (quoting Patel, 803 F.2d at 637-38)).
Although Patel recognized personal liability for corporate officers, it “did not
purport to limit personal liability to officers, and the Act’s broad definition of
‘employer’ does not admit of such a limitation.”

Lamonica v. Safe Hurricane

Shutters, Inc., 711 F.3d 1299, 1310 (11th Cir. 2013). Indeed, as a general matter,
“non-officers may be held personally liable under FLSA.” Id. at 1313. In clarifying
“the degree and type of operational control that will support individual liability
under FLSA,” id., the Eleventh Circuit explained in Lamonica that “[a] supervisor’s
ownership interests in the corporation and control over the corporation’s day-to-day
functions are relevant to [whether the individual is an employer] because they are
indicative of the supervisor’s role in causing the violation.”

Id.

However, the

“primary concern is the supervisor’s role in causing the FLSA violation” and “to

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support individual liability, there must be control over ‘significant aspects of the
company’s day-to-day functions, including compensation of employees or other
matters in relation to an employee.’” Id. at 1314 (quoting Alvarez Perez, 515 F.3d at
1160).
In the Eleventh Circuit, courts look to the “economic reality” of the situation
to determine whether an individual is an employer for purposes of the FLSA. The
economic reality test looks to “whether the alleged employer (1) had the power to
hire and fire the employees, (2) supervised and controlled employee work schedules
or conditions of employment, (3) determined the rate and method of payment, and
(4) maintained employment records.”

Villareal v. Woodham, 113 F.3d 202, 205

(11th Cir. 1997) (quoting Bonnette v. Cal. Health & Welfare Agency, 704 F.2d 1465,
1470 (9th Cir. 1983)); see also Powell v. Carey Int’l, Inc., 483 F. Supp. 2d 1168, 1183
(S.D. Fla. 2007). “[N]o single factor is dispositive. ‘Instead, the ‘economic reality’
test encompasses the totality of circumstances, no one of which is exclusive.’”
Santos v. Cuba Tropical, Inc., 829 F. Supp. 2d 1304, 1314-15 (S.D. Fla. 2011)
(quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999)).
Plaintiffs argue that there is no genuine issue of material fact that Mr.
Mamun was their employer. Plaintiffs contend that Mr. Mamun is a shareholder of
the corporation, a 100 percent owner, that he is the only signator on the bank
accounts of the restaurant, and that he is the lone individual who can bind the
company’s financial decisions. Plaintiffs also rely on testimony in the record that
Mr. Mamun (1) pays the restaurant’s bills, (2) authorizes purchases for the

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company, (3) checks sales reports, (4) talks to the managers, (5) checks the register,
(6) speaks with employees, (7) interacts with employees, (8) checks the wages and
tips given to employees, and (9) hires/fires all employees.

Therefore, Plaintiffs

conclude that the evidence presented conclusively shows that Mr. Mamun was their
employer and that he can be held individually liable under the FLSA.
Plaintiffs’ argument is unpersuasive, however, because there is an abundance
of factual disputes in the record as to whether Mr. Mamun was involved in the dayto-day operations of the restaurant. The manager of the restaurant, Carleia Ordaz
(“Ms. Ordaz”) testified that she – not Mr. Mamun – made every decision in the
operation of the business and that the latter did not spend more than one hour on
any given day that the business operated. She also stated that she had financial
control over the restaurant’s daily financial decisions, including management of the
company’s employees:
Q: Who decides how much beer or wine to purchase at a time?
A: I do.
Q: Who decides how much food to buy at any time?
A: I do.
...
Q: Who decides how many employees are needed each day?
A: Myself.
Q: Who decides which employees will clean the restaurant on a daily
basis?
A: I do. No one cleans. Only myself.
Q: Is that because you decided that or Mr. Mamun decided that?
A: I did.
Q: Who opens the business?
A: I do.
...
Q: Who makes the decisions on whether an employee is fired?
A: I do.
Q: Who makes the schedules for the employees?
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A: I do.
Q: Who decides which food products to put in the inventory?
A: I do. The menu, everything, me.
Q: What responsibilities does Sultan have at the restaurant that are
different
from yours?
A: To pay the bills, and to take the papers of everything, the sales of
the business and everything, to the accountant.
Q: What other duties – other than what you just mentioned, what
other duties does Sultan Mamun have?
A: Nothing else.
[D.E. 66-4 at 87-90].
Not to be deterred, however, Plaintiff insists that there is no genuine issue of
material fact because even if Ms. Ordaz performed many, if not all, of the day-to-day
operations of the business, Mr. Mamun had the final decision on any matter. That
is, Plaintiff contends that Mr. Mamun’s status as the owner of the business and his
ability to sign employee checks (which are the only uncontested facts between the
parties) is dispositive on the question of whether he was Plaintiffs’ employer.
Plaintiffs therefore conclude that, despite conflicting evidence in the record, the
facts establish that Mr. Mamun was their employer.
The Eleventh Circuit has recognized that “[t]he overwhelming weight of
authority is that a corporate officer with operational control of a corporation’s
covered enterprise is an employer along with the corporation, jointly and severally
liable under the FLSA for unpaid wages.”

Patel, 803 F.2d at 637–38 (internal

quotation marks and citation omitted). However, the Eleventh Circuit has also
made clear that to qualify as an employer for this purpose, an officer “must either

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be involved in the day-to-day operation or have some direct responsibility for the
supervision of the employee.” Id. at 638.
The decision in Patel is instructive given the question presented because the
defendant in that case was both a president and vice-president of the corporation,
as well as a director and principal stockholder. Yet, the Eleventh Circuit held that
the defendant was not an employer for FLSA purposes because he did not “have
operational control of significant aspects of [the company’s] day-to-day functions,
including compensation of employees or other matters in relation to an employee.”
Id. (internal quotation marks omitted) (citing Wirtz v. Pure Ice Co., 322 F.2d 259,
263 (8th Cir. 1963) (finding that a majority stockholder who visited the company
only two or three times a year and “had nothing to do with the hiring of the
employees or fixing their wages or hours” was not an employer under the FLSA)).
While the Eleventh Circuit acknowledged that the defendant could have played a
greater role in the operations of the company, the Court focused on the role that he
did play and concluded that he “lacked the operational control necessary for the
imposition of liability as an ‘employer’ under the FLSA.” Patel, 803 F.2d at 638; see
also Wirtz, 322 F.2d at 262 (“There is little question from the record but what
Thompson as the majority stockholder and dominant personality in Pure Ice
Company, Inc., could have taken over and supervised the relationship between the
corporation and its employees had he decided to do so. A careful reading of the
record, however, indicates that he did not do so.”).

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The same reasoning applies to the facts of this case because Plaintiffs argue
that Mr. Mamun’s position as the company’s owner and shareholder qualifies him
as an employer for FLSA purposes.

But, the Eleventh Circuit has repeatedly

rejected this argument and has focused more so on the role of the individual in
determining whether he or she constitutes an employer under the FLSA. To that
end, there is a factual dispute as to the duties that Mr. Mamun performed. Plaintiff
contends that Mr. Mamun was heavily involved in the day-to-day affairs of the
company whereas Defendants argue just the opposite. And both parties rely on
sworn evidence in the record to support their respective positions. As such, there
are genuine issues of material fact on whether Mr. Mamun can be held individually
liable as an employer under the FLSA and therefore Plaintiffs’ motion for summary
judgment must be DENIED.
C.

Whether Defendants Can Rely on a Tip Credit

Plaintiffs’ next argument is that Defendants cannot rely on a tip credit to
offset any failure to pay wages because (1) Defendants had no system and/or policy
to monitor the amount of tips Plaintiffs received, (2) Defendants failed to maintain
time records for the number of hours that Plaintiffs worked, and (3) Defendants
failed to provide adequate notice that it intended to incorporate tips as a part of the
company’s minimum wage obligations.

Plaintiffs rely, for support, on several

deponents and employees of the restaurant who testified that individuals kept their
own tips and that Defendants failed to adequately inform them that tips were part
of their statutory wage. While Plaintiffs concede that Defendants had posters that

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referenced overtime and minimum wage laws, Plaintiffs maintain that the posters
were taken down due to construction and that many employees could not
understand them anyways. Plaintiffs therefore conclude that Defendants’ failure to
comply with the FLSA and Florida law prohibit the use of a tip credit to offset
wages.
For most employees, the minimum wage that an employer must pay an
employee under the FLSA is $7.25 an hour. See 29 U.S.C. § 206(a)(1)(C). This rule
gives way, however, if the employee is a “tipped employee,” which authorizes an
employer to pay the employee (1) an hourly wage of $2.13 plus (2) an additional
amount in tips that brings the total wage up to the federal minimum wage of $7.25
an hour. 29 U.S.C. § 203(m). An employer who uses an employee’s hourly tips to
reach the minimum hourly wage due the employee is said to take a “tip credit.”
This means that a tip credit is the difference between the minimum wage and the
amount paid to a tipped employee.

See Crate v. Q’s Rest. Grp. LLC, 2014 WL

10556347, at *2 (M.D. Fla. May 2, 2014). It essentially allows an employer of a
tipped employee to pay a reduced minimum wage if the difference between the
current minimum wage rate and the reduced rate that the employer pays is covered
with the employee’s actual tips. See 29 U.S.C. § 203(m).
An employer has the burden of proving that it is entitled to take a tip credit
for an employee and the number of tips received by the employee to be credited. See
Barcellona v. Tiffany English Pub, Inc., 597 F.2d 464, 467 (5th Cir. 1979). Unless
an employer satisfies its burden of showing the applicability of the tip credit, an

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employee is “entitled to the full minimum wage for every hour worked.” Id. “An
employer seeking to take a tip credit must show that (1) the employee at issue is a
tipped employee, (2) the employer informed the employee of the tip-credit provision,
and (3) the employee retained all tips he received, except when an employer
requires an employee to participate in a tip pool with other employees who
customarily and regularly receive tips.” Kubiak v. S.W. Cowboy, Inc., 164 F. Supp.
3d 1344, 1354 (M.D. Fla. 2016) (citing Cumbie v. Woody Woo, Inc., 596 F.3d 577, 580
(9th Cir. 2010)).

If an employer fails to meet any of these preconditions, the

employer may not claim the tip credit, regardless of whether the employee suffered
actual economic harm as a result. See Garcia v. Koning Rest. Int’l L.C., 2013 WL
8150984, at *4 (S.D. Fla. May 10, 2013); see also Chung v. New Silver Palace Rest.,
Inc., 246 F. Supp. 2d 220, 229 (S.D.N.Y. 2002) (finding that an employer must
satisfy prerequisites “even if the employee received tips at least equivalent to the
minimum wage”).
Here, Plaintiffs argue that Defendants cannot rely on a tip credit because
Defendants had no system and/or policy to monitor the number of tips that
Plaintiffs received, and Defendants failed to maintain adequate time records for the
number of hours that Plaintiffs worked.

Plaintiffs’ contention is unpersuasive,

however, because neither of these failures undermine the three elements set forth
above. And even if Plaintiffs’ contentions were undeniably true (which they are not
for the reasons explained below), the lack of time records or a system to track tips
does not defeat an employer’s use of a tip credit. Making matters worse, Plaintiffs

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fail to reference a single case that supports their argument, and – based on the
undersigned’s review of the relevant case law – we have found no authority that
imposes this requirement for an employer to rely on a tip credit.

Accordingly,

Plaintiffs’ argument lacks merit.
Putting aside that shortfall, Plaintiffs’ argument fails for another reason
because there is conflicting evidence in the record on whether Defendants tracked
Plaintiffs’ tips and the number of hours worked. Ms. Ordaz testified, for example,
that she recorded the number of tips each employee received to ensure that each
employee received adequate compensation for the number of hours worked. In fact,
Ms. Ordaz testified that she performed weekly calculations and multiplied the
number of hours worked by a tip credit. Ms. Ordaz questioned employees on how
many tips they made each week and altered an employee’s paycheck as needed to
ensure that it complied with state and federal law. Therefore, even if Defendants’
failure to monitor tips and hours were relevant to the question of whether
Defendants could rely on a tip credit, there is conflicting evidence in the record that
precludes entry of summary judgment.
With that being said, Plaintiffs argue that Defendants failed to provide
adequate notice to employees that the company intended to take a tip credit against
their wages under the FLSA.2 To provide sufficient notice, the employer “must
inform its employees that it intends to treat tips as satisfying part of the employer’s
minimum wage obligations.” Vancamper v. Rental World, Inc., 2011 WL 1230805,
Only the second element of the three-pronged test is in dispute. We therefore
need not consider the first or third elements.
2

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at *6 (M.D. Fla. March 31, 2011) (internal quotation and citation omitted).
“Employers do not have to ‘explain’ the tip credit to employees, however; it is
enough to ‘inform’ them of it.” Chan v. Triple 8 Palace, Inc., 2006 WL 851749, at
*19 (S.D.N.Y.2006) (citing Kilgore, 160 F.3d at 298–300). To “inform” an employee
requires less effort than it would to “explain” the tip credit to the employees.
Kilgore, 160 F.3d 294, at 298.
Plaintiffs suggest that it is undisputed that Defendants failed to provide
adequate notice to the company’s employees. But, there is conflicting evidence in
the record on whether employees were notified of the tip credit policy. Ms. Ordaz
testified, for instance, that she informed employees of the policy when they were
hired and explained how employees would be compensated.

[D.E. 66-4 at 44]

(“When I hire them, I explain this to them. It’s by the hour, plus tips.”). And at
least three deponents testified that wage and hour posters were displayed to give
employees additional notice of overtime laws:
Q: Do you know if the restaurant had any posters that referenced the
minimum wage laws?
A: Yes, I saw that.
Q: When did you see that?
A: When I started, if I am not mistaken.
Q: In 2016?
A: Yes.
[D.E. 66-8 at 21] (Martha Martinez Deposition).
Q: Was there ever a poster present at Galiano that discussed overtime
laws?
A: Yes.
Q: Where was it located?

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A: It’s located close to -- okay, in a hallway that goes toward the
bathrooms. There are many posters there regarding employee rights
and obligations.
[D.E. 66-9 at 27] (Fania Trutie Deposition).
Q: Did you ever see a poster discussing overtime hours at Galiano?
A: Yes.
Q: Where was this?
A: In the hallway that goes towards the bathroom.
[D.E. 66-10 at 21] (Leida Ochoa Deposition). Therefore, contrary to Plaintiffs’
argument, there is conflicting evidence in the record on whether the company
provided verbal notice to employees, including a poster with relevant statutory
provisions on overtime laws.
Plaintiffs’ final contention is that a poster displayed in the workplace on
overtime laws was inadequate to provide employees notice of state and federal
overtime laws because it was only presented in English and many employees only
understood a different language. This argument is misplaced, however, because
“the FLSA does not require a rigorous explanation to employees about how the tip
credit works. In fact, such an explanation would serve no logical purpose.” Pellon v.
Bus. Representation Int'l, Inc., 528 F. Supp. 2d 1306, 1312 (S.D. Fla.
2007), aff’d, 291 F. App’x 310 (11th Cir. 2008).

If employees were advised and

“receive[d] a wage plus tip amount equal to minimum wage or higher . . . they do
not need to understand how the statutory mechanism applies to their employer.”
Id. at 1312 (finding that “employee understanding” would be an untenable legal
standard).

In addition, there are factual disputes as to how many employees

understood the poster notice and how its removal undermined the company’s notice
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obligations. See, e.g., Howard v. Second Chance Jai Alai LLC, 2016 WL 3883188, at
*3 (M.D. Fla. July 18, 2016) (“[T]he evidence in the record regarding what notice
was given to Plaintiffs is vague and inconclusive, including Plaintiffs’ depositions.
Neither party is entitled to summary judgment because the evidence creates an
issue of fact regarding whether Defendant complied with the notice requirements”).
Because there is conflicting evidence in the record on whether, and to what extent,
Defendants provided adequate notice to employees on the company’s intention to
take a tip credit, Plaintiffs’ motion for summary judgment is DENIED.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for summary judgment is
DENIED. [D.E. 65].
DONE AND ORDERED in Chambers at Miami, Florida, this 7th day of
June, 2019.

/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

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