United States District Court, D. Maryland
Frederick Motz. United States District Judge,
Morgan Barnhart (“Barnhart”), on behalf of
herself and all other persons similarly situated, brings this
class and collective action lawsuit against Chesapeake Bay
Seafood House Associates, L.L.C. (“Chesapeake”)
seeking overdue wages and money damages incurred while
plaintiff was employed as a server and bartender at
defendant's restaurants. Plaintiff brings claims under
the Federal Labor Standards Act (“FLSA”), 29
U.S.C. § 201, et seq.; the Maryland Wage and
Hour Law (“MWHL”), Md. Code Ann. § 3-401,
et seq.; and the Maryland Wage Payment and
Collection Law (“MWPCL”), Md. Code Ann. §
3-501, et seq., for defendant's alleged failure
to pay Barnhart and other employees the appropriate minimum
wage. (ECF No. 1). Pending is defendant's motion to
dismiss all claims or, in the alternative, for summary
judgment. (ECF No. 16). The motion is fully briefed, and no
oral argument is necessary. See Local Rule 105.6.
For the reasons set forth below, defendant's motion is
Chesapeake operates approximately thirty-one franchised
Chili's restaurants in Maryland and Virginia. (ECF No. 1
¶ 2). Chili's is a nationwide chain, and although
its locations are generally franchised to local owners, the
restaurants offer a fairly uniform dining experience.
(Id. ¶ 41). During the relevant time period,
for example, Chesapeake's Chili's locations shared
managers and allowed servers and bartenders to work at
multiple restaurants. (Id. ¶ 43-44). Across
locations, Chesapeake pays its “tipped employees”
- employees receiving more than the statutory minimum amount
in tips per month - less than the hourly minimum wage, as
permitted by the tip credit provisions of FLSA and MWHL.
(Id. ¶ 3). Defendant considers servers and
bartenders tipped employees for the purposes of FLSA's
and MWHL's tip credit provisions. (Id.).
Plaintiff Barnhart estimates that Chesapeake employed roughly
1, 000 tipped employees in the state of Maryland throughout
the limitations period. (Id. ¶ 21).
employed Barnhart as a tipped employee for over two years.
(See Id. ¶ 32). Barnhart began her employment
with Chesapeake in June 2013 as a server in defendant's
Linthicum, Maryland location. (Id.). For a short
portion of her employment, Barnhart also worked a closing
shift at Chesapeake's restaurant in Arundel Mills.
(Id.). Approximately one year after beginning her
employment with Chesapeake, Barnhart began working as a
bartender as well as a server. (Id. ¶ 34).
Barnhart also worked periodically as a “QA, ” an
expeditor position responsible for the final stages of food
preparation. (Id. ¶ 35). As a tipped employee,
Barnhart was paid less than minimum wage at a rate of
approximately $3.63 per hour when performing her role as a
server or bartender. (Id. ¶ 36).
Chesapeake paid Barnhart and other servers and bartenders
according to the tip credit provisions of FLSA and MWHL,
Barnhart contends that she spent between thirty and fifty
percent of her shift time performing duties in which she did
not interact with customers and did not have the opportunity
to earn tips. (Id. ¶ 39). According to
Barnhart, she and other individuals classified as
“tipped employees” were required to spend a
substantial portion of their shifts attending to tasks such
as setting up, stocking, and/or breaking down the soda, chip,
and soup machines, cleaning floors and restaurant surfaces,
removing cigarette butts from the bushes outside of the
restaurant, preparing the restaurant for pest exterminators,
and taking out the trash. (Id. ¶ 40). Some of
these non-tipped duties were specified in a checklist posted
at Chesapeake's restaurant locations, and completion of
the checklist by servers and bartenders was verified by the
managers. (Id. ¶¶ 46-47). Additionally,
Barnhart alleges that servers and bartenders were often
required to arrive at the restaurants thirty minutes to an
hour early and perform non-tipped work before the restaurants
were open to customers. (Id. ¶ 49). Servers and
bartenders were also required to perform non-tipped work
after the restaurants were closed to customers. (Id.
Barnhart's knowledge, Chesapeake did not have any sort of
institutionalized internal policy prohibiting tipped
employees from performing certain types of non-tipped work
unrelated to their role or from performing excessive amounts
of non-tipped work. (Id. ¶ 51). Furthermore,
Chesapeake did not track or record the amount of time servers
and bartenders spent performing tipped versus non-tipped work
during their shifts. (Id. ¶ 52). According to
Barnhart, Chesapeake did not allow employees to clock-in at
the full minimum wage rate when performing non-tipped work,
even though their point-of-sale time management system would
have allowed the defendant to easily record tipped and
non-tipped time and adjust the wage accordingly.
(Id. ¶¶ 53, 56-57).
filed a class and collective action complaint in this court
on April 28, 2016. The complaint asserts three claims against
Chesapeake: violation of Section 201, et seq. of the
FLSA (Count I), violation of Section 3-401, et seq.
of the MWHL (Count II), and violation of Section 3-501,
et seq. of the MWPCL (Count III). (Id.
¶ 1). Chesapeake filed a motion to dismiss all
claims under Rule 12(b)(6) of the Federal Rules of Civil
Procedure or, in the alternative, for summary judgment under
Rule 56 on June 23, 2016. (ECF No. 16).
has filed a motion to dismiss Bales' first amended
complaint under Rule 12(b)(6) or, in the alternative, for
summary judgment pursuant to Federal Rule of Civil Procedure
56(c). I consider this motion as a motion to dismiss under
Rule 12(b)(6). In reviewing a motion to dismiss under
Rule 12(b)(6) for failure to state a claim, the court
“must accept as true all of the factual allegations
contained in the complaint” and “draw all
reasonable inferences in favor of the plaintiff.”
E.I. du Pont de Nemours & Co. v. Kolon Indus.,
Inc., 637 F.3d 435, 440 (4th Cir. 2011). The complaint
must allege facts sufficient to “state a claim to
relief that is plausible on its face, ” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007), and allow
the court to “draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009). The
court is not, however, required to accept the legal
conclusions derived from the facts, and “[a] complaint
that provides no more than labels and conclusions or a
formulaic recitation of the elements of a cause of
action” is insufficient to meet the pleading standard.
Twombly, 550 U.S. at 555; see also Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (stating that
the “mere recital of elements of a cause of action,
supported only by conclusory statements, is not sufficient to
survive a motion made pursuant to Rule 12(b)(6)”).
Generally, a motion to dismiss for failure to state a claim
“does not resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.”
Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.
1999); see also Tobey v. James, 706 F.3d
379, 387 (4th Cir. 2013).
uses the same alleged facts to support both her federal claim
and her state law claims. I will analyze plaintiff's
claim under the FLSA before turning to her parallel state
claims under the MWHL and the MWPCL.
Barnhart's claim under the FLSA
Barnhart asserts two alternative bases for relief under
FLSA. First, Barnhart contends that she and
other tipped employees were required to spend a significant
amount of time performing work that was unrelated to their
roles as servers or bartenders, and were thus working
“dual jobs” as defined by FLSA regulations.
(See ECF No. 1 ¶¶ 6, 70). Because Barnhart
was employed in a “dual job, ” she is entitled to
the full minimum wage for the hours spent performing the
unrelated duties. Second, Barnhart argues that even if the
non-tipped duties she performed can be construed as
“related” to her occupation as a server or
bartender, the time spent performing these duties exceeded
20% of her weekly ...