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Paul Turner, et al., Etc v. Millennium Park Joint Venture

March 7, 2011


The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge


Paul Turner and Andrew Warren, characterizing themselves as representative plaintiffs in a putative class action, have sued their former employer, Millennium Park Joint Venture, LLC ("Millennium"), charging it with improper tip pooling under the Fair Labor Standards Act ("FLSA," 29 U.S.C. §§201 to 219) as well as violations of the Illinois Minimum Wage Law ("Wage Law," 820 ILCS 105/1 to 105/15) and the Illinois Wage Payment and Collection Act ("Wage Payment Act," 820 ILCS 115/1 to 115/15).*fn1

Both sides have moved for summary judgment under Fed. R. Civ. P. ("Rule") 56 on all counts, and Millennium has alternatively moved under Rule 56(d) "for an order specifying items of damages not genuinely at issue." For the reasons stated in this memorandum opinion and order, Millennium's Rule 56 motion is granted (so that plaintiffs' Rule 56 motion is necessarily denied), with Millennium's Rule 56(d) motion consequently being denied as moot.

This action itself is dismissed.

Summary Judgment Standard

Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts consider the evidentiary record in the light most favorable to nonmovants and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But a non-movant must produce more than "a mere scintilla of evidence" to support the position that a genuine issue of material fact exists (Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)) and "must come forward with specific facts demonstrating that there is a genuine issue for trial" (id.). Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the non-movant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

One more complexity is added where, as here, cross-motions for summary judgment are involved. Those same principles require the adoption of a Janus-like perspective: As to each motion the non-movant's version of any disputed facts must be credited. What follows, then, is a summary of the undisputed facts.*fn2

Factual Background

Plaintiffs were both hired in 2008 and worked until early 2010 as servers at the Park Grill at Millennium Park ("Park Grill") operated by Millennium (M. St. ¶1,6; M. Mem. Hayes Decl. Ex. 1, 2). All servers' primary duty at Park Grill was to "provide patrons with a great dining experience" (M. St. ¶9). Aside from taking orders and handling checks, servers completed various other set-up functions (including rolling silverware) and closing functions (P. Resp. St. ¶9).

Servers at Park Grill were paid 60% of the minimum wage in effect at the time (P. Resp. St. ¶6), with the remaining 40% being covered under the tip credit provisions of the Wage Law and FLSA (id.) Servers contributed a portion of the tips they received, calculated on the basis of a predetermined percentage of sales, to Park Grill's tip pool (id.).

In 2006, both before and during a management meeting to discuss suggestions on how to improve operations, Millennium's servers voiced their desire for Park Grill to hire a separate silverware roller (M. St. ¶12). As a result of that discussion, the servers voted unanimously that management should hire such silverware rollers and gave management a standing ovation for statements as "St. ¶ --," responsive statements as "Resp. St. ¶ --," and memoranda as "Mem. --," "Resp. Mem. --" and "Reply Mem.--." agreeing to do so (id.).*fn3 Millennium indeed hired silverware rollers at Park Grill (id.), and they receive $3 per day per server from the tip pool (id.).

Tip Pooling Under FLSA

Congress brought restaurant workers under the umbrella of FLSA's overtime provisions in 1966 by creating the "tip credit," which allows employees to credit up to 50 % of the tips received by a "tipped employee" toward the required minimum wage (29 U.S.C. §203(m); S. Rep. No. 89-1487, at 12-13 (1966)). FLSA defines a tipped employee as "any 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)), and the same section allows tip pooling "among employees who customarily and regularly receive tips."

This case, as many have, revolves around the interpretation of the phrase "customarily and regularly receive tips." Such cases generally arise where, as here, some employees object to the inclusion of other employees in a tip pool. Because our Court of Appeals has not directly addressed the meaning of the relevant statutory provisions, ...

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