United States District Court, M.D. Alabama, Southern Division
MEGHAN MOULTON, KIANA RIVERS, STEPHANIE GRIFFIN, and VICTORIA SEARCY, Plaintiffs,
W.W.I., INC., d/b/a THINGS & WINGS RESTAURANTS, and WILLIAM W. INGRAM, Defendants.
MEMORANDUM OPINION AND ORDER
L. BRASHER ANDREW L. BRASHER UNITED STATES DISTRICT JUDGE
matter comes before the court on Plaintiffs Meghan Moulton,
Kiana Rivers, Stephanie Griffin, and Victoria Searcy's
(the “employees”) motion for partial summary
judgment. (Doc. 27). Upon consideration, the motion is
W.W.I., Inc. and William W. Ingram (the
“employers”) operate three restaurants in Dothan,
which they refer to as the North, South, and West side
stores. (Doc 26-1 at 5). Ingram is the “sole
owner” of W.W.I., Inc., although there was also an
employee shareholder while the employees worked for him.
(Doc. 26-1 at 5). Ingram was “the individual that
turned the hours worked in to an outside payroll service
called Apex.” (Doc. 26-1 at 7).
hiring a new server, the employers would tell the servers
that they would be paid $2.15 per hour, “[a]nd the tips
that they earn will be reported” because the employers
planned to take a “tip credit.” (Doc. 26-1 at
41). Ingram decided to pay $2.15 rather than the $2.13
required by FLSA because he “wasn't going to fool
with the two cents.” (Doc. 26-1 at 20).
employees allege that the employers deducted uniforms,
customers' beverages, and missing silverware from their
base wage, which improperly lowered their wage beneath the
$2.13 required by FLSA. (Doc. 27 at 4, 8). The employees are
charged for their initial uniforms, three shirts and two
aprons, and any replacements. (Doc. 26-1 at 25). Ingram
acknowledged that both the initial and replacement uniform
purchases were deducted from their pay. (Doc. 26-1 at 25).
The employers require the servers to put what beverage each
customer is drinking at the top of the ticket. (Doc. 26-1 at
17). The employers notified the employees that if they failed
to do so, the employers would take the beverages out of their
individual paychecks. (at 17). But the employees could be
reimbursed the $2.50 drink deduction per customer if they
remembered the table drank. (Doc. 26-1 at 19). In hindsight,
Ingram said that “[t]he right choice probably
would've been just to terminate them, ” but they
were having trouble keeping servers. (Doc. 26-1 at 18). As
for the silverware, Ingram said he “might” have
heard about such deductions, but he would be surprised to
learn that it had occurred at his restaurants. (Doc. 26-1 at
confronted with the employees' allegations, Ingram
repeatedly acknowledged the illegality of his conduct:
“Q. You take their beverage money away from them, which
is illegal if you're [sic] counsel hasn't advised you
already. A. Yeah. I'm just trying to change behavior,
trying to get them to charge for it. They have bad
habits.” (Doc. 26-1 at 37). And again:
“Q. So the money is coming out of somewhere, and the
only other money you're paying them is the 2.15 per hour
subminimum wage rate, right? A. Yeah. Q. So it's coming
out of that? A. Yeah. It has to. It's the only thing
left. [(Doc. 26-1 at 41)]
“Q. And did Bailey, when she was training individuals,
tell them that it was illegal for you-all to put them below
the minimum wage -- A. Yes. Q.-- and to deduct from that 2.15
per hour? A. Yes. Q. So you-guys knew what you were doing was
illegal? A. Which part? Q. Deducting the beverages from the
2.15 per hour rate. A. I don't think that thought process
entered our minds that it was illegal. We were just trying to
change their behavior. Q. Well, you -- A. I don't think
that was a conscious thought.”
(Doc. 26-1 at 42). And a third time:
“Q. But if it was to get bad again and it would be
economically feasible, you would reinstitute the policy? A.
No, not after this meeting. Q. Why? A. Because you just told
me it was illegal. We would … write them up, take
disciplinary action against them or coach them and counsel
them how to avoid it, advise their supervisor to check behind
(Doc. 26-1 at 42).
their briefing, neither party provided much support for their
respective positions. The employers provided an employee
manual, but later acknowledged that it was not the correct
edition. (Doc. 26-1 at 25). And due to a hard drive crash,
the data for the North side store was lost. (Doc. 26-1 at
15). The status of the other stores' data is unclear.
Ingram remembered attempting to recover the employees'
data from the south and west side stores, but he could not
remember whether he was successful. (Doc. 26-1 at 15). Later,
Ingram said he “honestly, truthfully can't recall
trying to search for” the west side's data. (Doc.
26-1 at 44). But he also said, “I could contact Apex
and have them print me up beverage charges through their
software. They could print me a report on uniforms that was
deducted from the individuals.” (Doc. 26-1 at 18).
from the computer failure, it seems that the employers'
recordkeeping left something to be desired, not even tracking
their employees' cash tips: “Q. Do you know what
the average tips are for cash or is that not -- do you track
that? A. No, we don't track that. I have no way of
telling.” (Doc. 26-1 at 44).
plan to make up for the missing evidence about the hours
worked was “[w]itnesses. These four plaintiffs are the
only persons that I am aware of that ever had a complaint in
the 26-year history of our company. And I can talk to my
present employees I've got and the ones from the past
….” (Doc. 26-1 at 37). Ingram guessed that
interviewing these witnesses would show “very few
complaints or problems.” (Doc. 26-1 at 37). So, Ingram
proposed using “other people's testimony and other
people's information and … information I'm
aware that I can get from Apex.” (Doc. 26-1 at 38).
employers, however, were ultimately able to provide payroll
information from Apex. Griffin worked 29 hours 53 minutes of
overtime, Rivers 0 hours 0 minutes, Searcy 5 hours 30
minutes, and Moulton 12 hours 9 minutes. (Doc. 29 at 11,
17, 20, 26). The payroll information also shows
“miscellaneous pay” and beverage and uniform
deductions. Griffin received $60.74 in miscellaneous pay,
Rivers $0.00 Searcy $92.00, and Moulton $118.00. (Doc. 29 at
11, 17, 20, 26). Griffin's beverage deductions were
$61.00, Rivers $34.50, Searcy $67.50, and Moulton $50.50.
(Doc. 29 at 11, 17, 20, 26). Griffin's uniform deductions
were $22.00, Rivers $49.00, Searcy $45.00, and Moulton
$56.00. (Doc. 29 at 11, 17, 20, 26).
pay” was given either for error correction or to avoid
paying for overtime work by allowing the employees to work
off-the-clock. (Doc. 26-1 at 11).
“Q. And so why would you make them not work the shift?
A. Because of the overtime pay. It's just-it's almost
an industry standard in not letting servers work their
overtime pay. Q. Yeah. But you're letting them work.
You're not just not letting the hours accrue. A.
That's correct. Q. And that makes it better to you? That
makes it legal to you? A. I don't know. ...