Barrera v. Mi Tierra Cafe & Bakery

Filing 77

ORDER GRANTING IN PART AND DENYING IN PART 52 Defendant's Motion for Partial Summary Judgment (as stated in Order); GRANTING 55 Defendant's Motion for Partial Summary Judgment Regarding Meal Deductions; GRANTING 65 Defendant's Motion for Sanctions. Plaintiffs Andrade and Molina are ordered to pay to Defendant a total of $3,830.75 within fourteen days of this Order. Signed by Judge Xavier Rodriguez. (kh, )

In the United States District Court
for the
Western District of Texas
VIRGINIA BARRERA
v.
MTC, INC.

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SA-10-CV-665-XR

ORDER
On this day came on to be considered Defendant‟s motions for partial summary judgment
(doc. nos. 52 and 55), Defendant‟s motion for sanctions (doc. no. 65), the Magistrate Judge‟s
Reports and Recommendations regarding these motions (doc. nos. 71 and 74), and the parties‟
objections and responses thereto.
Background
Plaintiff and the opt-in plaintiffs she represents allege that the Defendant, Mi Tierra,
violated the Fair Labor and Standards Act (FLSA) by incorrectly relying on the tip-credit/tippooling exception to the FLSA's minimum-wage requirement (an exception that allows
employers to pay $2.13 instead of $7.25 per hour). 29 U.S.C.A. §§ 203(m, t), 206(a)(1) (2006).
Specifically, Plaintiff claims that the Defendant includes “service bartenders” in the tip pool,
which service bartenders are as a matter of law ineligible for inclusion in a tip pool, that the pool
is therefore invalid, and that the Defendant is thus not exempt from the mandate to pay its
employees minimum wage.
On July 29, 2011, this Court entered an order denying Plaintiff‟s motion for partial
summary judgment concluding that a question of fact existed regarding whether Defendant's
service bartenders are “customarily and regularly” tipped. Defendant now files its motion for

partial summary judgment arguing that inasmuch as the service bartenders perform their duties in
front of the public, their inclusion in the tip pool is proper.
With regard to the motion for sanctions, Mi Tierra complains that two members of the
class, Javier Andrade and Roberto Molina have twice failed to appear for their scheduled
depositions and request that they be dismissed from this case.
Magistrate Judge’s Reports and Recommendations
In his report dated February 16, 2012, the Magistrate Judge recommended that Andrade
and Molina be dismissed as plaintiffs for their failure to appear for their depositions. In addition,
the Magistrate Judge recommended that Andrade and Molina pay the reasonable expenses,
including attorney‟s fees, incurred by Defendant in preparing for and attending the depositions,
as well as in preparing the motion for sanctions. Plaintiffs filed no response to the motion for
sanctions and have not filed any objections to the Magistrate Judge‟s Report and
Recommendation.
With regard to the Defendant‟s Motion for Partial Summary Judgment (doc. no. 52), the
Magistrate Judge recommended that the motion be granted in part and denied in part. With
regard to the Motion for Partial Summary Judgment Regarding Meal Deductions (doc. no. 55),
the Magistrate Judge recommended that the motion be granted.
Standard of Review
The Court must review de novo any of the Magistrate Judge's conclusions to which a
party has specifically objected. 28 U.S.C. § 636(b) (1). The Court will examine the entire record
with regard to that portion, and will make an independent assessment of the law. The Court
reviews the rest of the report for clear error only. Id.

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Summary judgment is proper when the evidence 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). Although the evidence is viewed in the light most favorable to the nonmoving party, a
nonmovant may not rely on “conclusory allegations, unsubstantiated assertions, or only a
scintilla of evidence” to create a genuine issue of material fact sufficient to survive summary
judgment. Freeman v. Tex. Dep't of Criminal Justice, 369 F.3d 854, 860 (5th Cir. 2004).
Analysis
Motion for Sanctions
The Magistrate Judge recommended that Andrade and Molina pay the reasonable
expenses, including attorney‟s fees, incurred by Defendant in preparing for and attending the
depositions, as well as in preparing the motion for sanctions. Plaintiffs filed no response to the
motion for sanctions and have not filed any objections to the Magistrate Judge‟s Report and
Recommendation. The recommendation is not clearly erroneous and is accepted. Defendant‟s
motion for sanctions is granted (doc. no. 65). Defendant has tendered affidavits explaining that it
incurred $3,379 in attorney‟s fees in preparing for and attending the depositions in question and
preparing the motion for sanctions. Defendant also incurred $451.75 in costs. Plaintiffs have not
objected to these requested fees and costs. Plaintiffs Andrade and Molina are ordered to pay to
Defendant a total of $3,830.75 within fourteen days of this Order.
Motion for Partial Summary Judgment Regarding Meal Deductions (doc. no. 55)
The Magistrate Judge recommends that this unopposed motion be granted.
recommendation is not clearly erroneous and is accepted.

Defendant‟s Motion for Partial

Summary Judgment Regarding Meal Deductions (doc. no. 55) is granted.

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The

Motion for Partial Summary Judgment (doc. no. 52)
The Magistrate Judge recommends that this motion be granted in part and denied in part.
Specifically, the Magistrate Judge concluded that “plaintiffs have not refuted defendant‟s
summary judgment evidence that compulsory services charges were not improperly distributed
to „cooks and/or kitchen workers‟, or that its tip pool is valid as to its bakery servers, host staff,
and assistant servers/bussers.”

Plaintiffs have not objected to this recommendation.

recommendation is not clearly erroneous and is accepted.

The

Defendant‟s Motion for Partial

Summary Judgment on this issue is granted.
Given the above, the only remaining issue in this case is whether Defendant‟s service
bartenders can be considered employees who “customarily and regularly receive tips.” Both
parties vigorously dispute this question.

Defendant argues that the service bartenders are

stationed at two service bars located in the restaurant dining area and that the decorated bars add
ambience. Plaintiffs argue that the bars are not visible to many patrons as they are located in
only two of the five separate dining areas, patrons who dine are tipping in recognition of service
provided by servers not service bartenders, and patrons who do not order alcoholic beverages do
not receive any services from the service bartenders.
Plaintiffs claim that Mi Tierra‟s service bartenders are incorrectly included in the tip pool
because they are not “customarily and regularly” tipped as a matter of law. Under the FLSA, an
employer must pay their employees minimum wage, unless the employees are “engaged in an
occupation in which [they] customarily and regularly receive more than $30 dollars a month in
tips.” § 203 (m, t). However, the employees must be allowed to keep all of their tips, either
individually or through a tip pool. § 203 (m). Moreover, a tip pool can only contain “employees
who customarily and regularly receive tips.” § 203(m). “The phrase „customarily and regularly‟

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signifies a frequency which must be greater than occasional, but which may be less than
constant.” 29 C.F.R. § 531.57 (2011).
The Magistrate Judge recommends denying Defendant‟s motion for summary judgment
on this issue because questions of fact exist. The Court agrees with the recommendation. As
stated in the Court‟s previous order denying Plaintiff‟s motion for summary judgment, a
determination of an employee's eligibility to participate in a tip pool requires an analysis of an
employee's duties. There is a factual dispute regarding duties. There is a factual dispute
regarding the actual visibility of the service bartenders by patrons, and there is a factual issue
regarding whether service bartenders perform a customer service for which patrons would tip in
recognition. Defendant‟s motion for partial summary judgment on this issue is denied. See
Roussell v. Brinker Int’l, Inc., 18 WH Cases 2d 304, 2011 WL 4067171 (5th Cir. 2011) (“We
conclude that the district court reasonably found direct customer interaction „highly relevant‟ to
tip-eligibility. It neither made direct interaction a prerequisite-as claimed by amici-nor did it
reject Brinker's suggestion that the performance of „important customer service functions‟ also is
relevant to tip-eligibility.”).
Conclusion
Defendant‟s motion for sanctions is granted (doc. no. 65). Plaintiffs Andrade and Molina
are ordered to pay to Defendant a total of $3,830.75 within fourteen days of this Order.
Defendant‟s Motion for Partial Summary Judgment Regarding Meal Deductions (doc. no. 55) is
granted. The Motion for Partial Summary Judgment (doc. no. 52) is granted in part and denied
in part as stated above.

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SIGNED this 10th day of April, 2012.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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