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Romero v. Top-Tier Colorado LLC

United States District Court, D. Colorado

February 9, 2016

AARICA ROMERO, Plaintiff,
v.
TOP-TIER COLORADO LLC, d/b/a Huhot Mongolian Grill, and RICHARD J. WARWICK, Defendants.

ORDER ON MOTION TO DISMISS

Michael E. Hegarty United States Magistrate Judge

Before the Court is Defendants’ Motion to Dismiss Under Fed.R.Civ.P. 12(b)(6) [filed December 28, 2016; docket #13]. The Motion is fully briefed, and the Court finds that oral argument will not assist in its adjudication of the Motion. Based on the record herein and for the reasons that follow, the Court grants the Motion.[1]

BACKGROUND

Plaintiff initiated this lawsuit by filing her Complaint on September 23, 2015, claiming Defendants violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., in handling Plaintiff’s wages when she worked as a server at Defendant Huhot Mongolian Grill. Complaint, docket #1. Defendant responded with the current Motion, asserting Plaintiff has not properly pled an FLSA minimum wage violation, thus her case should be dismissed. Motion, docket #13.

The following are factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by the Plaintiff in her Complaint, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Plaintiff worked as a full-time server for Defendant Huhot, a restaurant in Arapahoe County, Colorado, between approximately April 1, 2013, and July 31, 2015.[2] Complaint, docket #1 at 4, 10. Defendant Richard Warwick is a manager of and has an interest in Defendant Huhot, making him also an employer subject to the FLSA. Id. at 3. Defendants did not pay Plaintiff minimum wage. Id. at 5. Instead, they paid her as a tipped employee, imposing a “tip credit” upon Plaintiff at below the minimum wage, as described below. Id.

More than 20 percent of the work Plaintiff did in a given workweek involved non-tipped labor that was related to her tipped occupation. Id. Examples of Plaintiff’s work in this category included:

preparatory and workplace maintenance tasks such as brewing tea, brewing coffee, rolling silverware, cleaning soft drink dispensers, wiping down tables, setting tables, busing tables, cutting and stocking fruit, stocking ice, taking out trash, scrubbing walls, sweeping floors, restocking to-go supplies, cleaning booths, cleaning ramekins, sweeping, mopping, restocking all stations, washing dishes, and breaking down and cleaning the expo line.

Id. Defendants also required Plaintiff to engage in other non-tipped labor unrelated to her tipped occupation. Id. Examples of Plaintiff’s work in this category included: “preparatory and workplace maintenance tasks such as taking out trash, scrubbing walls, sweeping floors, cleaning booths, sweeping, mopping, washing dishes, [and] breaking down and cleaning the expo line.”[3] Id. Defendants required Plaintiff to do such work “before, during, and after scheduled shifts; before the restaurant was open to customers; after the restaurant was closed to customers; while Plaintiff had few to no customers to serve; before serving her first customer; and after being ‘cut’ from serving customers.” Id.

As a result, Plaintiff argues Defendants should have categorized her differently when she was engaged in non-tipped work, as defined by the “dual jobs” regulation, 29 C.F.R. §§ 531.56(e) and (a) and the U.S. Department of Labor Field Operations Handbook §30d00(e) (“DOL Handbook”), both described below. Id. at 6-7. Plaintiff therefore seeks to be paid “overall minimum wage for all time performing such non-tipped, dual occupation labor.” Id. at 7. She seeks relief based on Defendants’ willful violation of the FLSA based on non-tipped labor (1) related to tipped work in excess of 20 percent, and (2) unrelated to tipped work. Id. at 10-11.

LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679-80. Second, the Court must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.

Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a ...


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