Case 4:12-cv-00833 Document 1

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION TESS REBECCA NACHENBERG,, Individually, And On Behalf of All Others Similarly Situated Plaintiffs, v. PAPPAS RESTAURANTS, INC., Defendants

CIVIL ACTION NO. _______________

PLAINTIFFS ORIGINAL COMPLAINT (COLLECTIVE ACTION) I. Summary 1. Defendant employed Plaintiff and others similarly situated as wait staff at its restaurants. Defendant attempted to use a tip credit arrangement to satisfy the minimum wage requirements of the Fair Labor Standards Act, but required the wait staff to turn over a portion of their tips to a tip pool which included workers who were not customarily and regularly tipped, including, but not limited to, each restaurants dishwashing staff. Defendant also failed to properly inform Plaintiff and others similarly situated about the operation of its tip pool including but not limited to its inclusion of employees who were not customarily and regularly tipped. As a result of this invalid tip pool, for which Defendant is not entitled to credit under the Fair Labor Standards Act, Defendant failed to pay Plaintiff and other wait staff the minimum wage while allowing the staff to keep all of their tips as required by the Fair Labor Standards Act. 2. Defendants other similarly situated employees were subject to the same FLSA

violations. Plaintiff TESS REBECCA NACHENBERG hereby files this action to recover minimum

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wages which she failed to receive as compensation owed to her individually, and on behalf of all other similarly situated employees (hereinafter Class Members). II. Subject Matter Jurisdiction and Venue 4. This Court has jurisdiction over the subject matter of this action under 29 U.S.C.

216(b) and 28 U.S.C. 1331. 5. Venue is proper in the Southern District of Texas because the events forming the

basis of this suit occurred in the Southern District of Texas. III. Parties and Personal Jurisdiction 6. Texas. 7. The Class Members are all of Defendants similarly situated current and former Plaintiff TESS REBECCA NACHENBERG, is an individual, residing in Houston,

employees who were paid with a tip credit and required to contribute to a tip pool (1) which also paid workers who did not regularly or customarily receive tips or (2) who Defendant failed to properly inform about the operation of its tip pool, including but not limited to the inclusion of employees who were not customarily and regularly tipped. 8. Defendant PAPPAS RESTAURANTS, INC., is a corporation organized under the

laws of the State of Texas, which maintains its principal place of business in Houston, Texas. This Defendant may be served with process by serving its registered agent, Frank Markantonis, 642 Yale, Houston, Texas 77007.

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IV. Coverage 9. At all material times, Defendant has been an employer within the meaning of 3(d) of

the FLSA. 29 U.S.C. 203(d). 10. At all material times, Defendant has been an enterprise within the meaning of 3(r)

of the FLSA. 29 U.S.C. 203(r). 11. At all material times, Defendant has been an enterprise in commerce or in the

production of goods for commerce within the meaning of 3(s)(1) of the FLSA because Defendants have had and continue to have employees engaged in commerce. 29 U.S.C. 203(s)(1). 12. At all material times, Plaintiff and Class Members were employees who engaged in

commerce or in the production of goods for commerce as required by 29 USC 206-207. 13. Furthermore, Defendant has had, and continue to have, an annual gross business

volume in excess of the statutory standard. V. Facts 14. 15. Defendant operates restaurants in Texas and elsewhere. Defendant employs individuals such as Plaintiff and others similarly situated to act

as waiters and waitresses. Plaintiff was employed at Defendants Yia Yia Marys location on San Felipe at IH-610 in Houston. 16. Defendant used the maximum tip credit available to pay Plaintiff and others

similarly situated, which meant that since the tip credit was invalid the Plaintiff as well as all others similarly situated were paid less than the minimum wage and they were not allowed to keep all of their tips as required by law. -3-

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17.

Plaintiff and others similarly situated were required to pay into a tip pool. The tip

pool paid collected tips to some workers who did not regularly and customarily receive tips, such as dishwashers. Defendant failed to properly inform Plaintiff and others similarly situated about the operation of the tip pool, including its payments to employees who did not customarily and regularly receive tips. 18. The tip pool did not meet the requirements of the FLSA in that (1) employees who

did not customarily and regularly receive tips were included in the pool and (2) Defendant failed to properly inform Plaintiff and others similarly situated about the operation of the tip pool, including its payments to employees who did not customarily and regularly receive tips. Since the tip pool was invalid under the FLSA, Plaintiff and others similarly situated were entitled to, but did not, receive all of their tips as part of their compensation in order to meet the Acts minimum wage requirements. Plaintiff and other similarly situated did not therefore receive wages equal to or exceeding the minimum wage for the hours they worked for Defendant. 19. received. 20. 21. Plaintiffs are non-exempt employees. Defendants method of paying Plaintiffs in violation of the FLSA was willful and Upon information and belief, Defendant did not keep proper records of the tips

was not based on a good faith nor a reasonable belief that such conduct complied with the FLSA. VI. Count One: Violation of FLSA 22. 23. Plaintiffs incorporate all allegations contained in the foregoing paragraphs. Defendants practice of failing to pay Plaintiff minimum wage violates the FLSA 29

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U.S.C. 206. VII. Collective Action Allegations 24. Plaintiff has actual knowledge that Class Members similarly situated have not been

paid the minimum wage required by the FLSA. 25. Other employees similarly situated to Plaintiff have worked for Defendants

restaurants, with employees who do not regularly or customarily receive tips participating in the tip pool and without being properly informed by Defendant of the operation of the tip pool and that payments were made from the tip pool to employees who did not customarily or regularly receive tips.. 26. Plaintiff. 27. As such, Class Members are similar to Plaintiff in terms of job duties, pay structure, The Class Members perform or have performed the same or similar work as the

and the failure to pay minimum wage. 28. Defendants failure to pay the minimum wage required by the FLSA, results from

generally applicable policies or practices, and does not depend on the personal circumstances of the Class Members. 29. The experiences of the Plaintiff, with respect to her pay, are typical of the experiences

of the Class Members. 30. The specific job titles or precise job responsibilities of each Class Member does not

prevent collective treatment. 31. All Class Members, irrespective of their particular job requirements, are entitled to

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be paid the minimum wage specified by the FLSA. 32. Although the exact amount of damages may vary among Class Members, the damages

for the Class Members can be easily calculated by a simple formula. The claims of all Class Members arise from a common nucleus of facts. Liability is based on a systematic course of wrongful conduct by the Defendant that caused harm to all Class Members. 33. The class of similarly situated persons is properly defined as follows: Class Members are all of Defendants current and former Waiters and Waitresses who were paid with a tip credit and required to contribute to a tip pool (1) which also paid workers who did not customarily and regularly receive tips or (2) which Defendant failed to properly inform of the operation of the tip pool, especially that payments were made from the tip pool to employees who did not customarily and regularly receive tips. VIII. Damages Sought 34. Plaintiff and Class Members are entitled to recover compensation for their unpaid

minimum wages, including the full amount of tips received. 35. Plaintiff and Class Members are also entitled to an amount equal to all of their unpaid

wages as liquidated damages. 29 U.S.C. 216(b). 36. Additionally, Plaintiff and Class Members are entitled to recover their attorneys fees

and costs as required by the FLSA. 29 U.S.C. 216(b). IX. Prayer 37. For these reasons, Plaintiff and Class Members respectfully request that judgment

be entered in their favor awarding the following relief.

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a. b. c. d.

Minimum wages plus all tips for all work performed; An equal amount as liquidated damages as allowed under the FLSA; Reasonable attorneys fees, costs and expenses of this action as provided by the FLSA; and, Such other relief in which Plaintiff and Class Members may be entitled, at law or in equity. Respectfully submitted, THE CHAFFIN LAW FIRM /s/ Robert A. Chaffin __________________________________ Robert A. Chaffin Texas State Bar No. 04057500 Federal Bar No. 5838 4265 San Felipe, Suite 1020 Houston, Texas 77027 (713) 528-1000 (713) 952-5972/Fax Attorneys for Plaintiff and Class Members

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