Amaya v. La Grande Boucherie LLC

1

ANDREA AMAYA, BENCHER MONTEBON, OLSI VELO, JASMIN DZOGOVIC, RICHARD ANTON, an SARAH PRUITT, individually and on behalf of others similarly situated, Plaintiffs, v. LA GRANDE BOUCHERIE LLC, THE GROUP U.S. MANAGEMENT LLC, and EMIL STEFKOV, Defendants.

No. 23-cv-8897 (LJL)

United States District Court, S.D. New York

May 13, 2024

MEMORANDUM AND ORDER

LEWIS J. LIMAN, United States District Judge

Defendants La Grande Boucherie LLC (“Grande Boucherie”), the Group U.S. Management LLC (“The Group”), and Emil Stefkov (“Stefkov,” and together with Grande Boucherie and Group U.S. Management “Defendants”) move, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the Amended Complaint against them for failure to state a claim for relief. Dkt No. 27. For the following reasons, the motion is granted in part and denied in part.

BACKGROUND

For purposes of this motion, the Court accepts the well-pleaded allegations of the Amended Complaint as true.

Defendants Grande Boucherie and The Group are New York limited liability companies that own and operate La Grande Boucherie (“La Grande Boucherie” or the “Restaurant”), a restaurant located on West 53^rd Street in New York, New York. Dkt. No. 25 ¶ 16. Stefkov is the owner and operator of Grande Boucherie and The Group. Id. ¶ 18. Plaintiffs Andrea Amaya (“Amaya”), Bencher Montebon (“Montebon”), Olsi Velo (“Velo”) Jasmin Dzogovic (“Dzogovic”), Richard Anton (“Anton”), and Sarah Pruitt (“Pruitt”) are or were employed by Defendants at La Grande Boucherie as either servers or a bartender. Id. ¶¶ 7-13. Amaya has been employed by Defendants at La Grande Boucherie as a server from around September 2020 through the present. Id. ¶ 7. Montebon has been employed as a bartender at the Restaurant from around May 2021 through the present. Id. ¶ 8. Dzogovic was employed as a server at the Restaurant from around February 2022 through around August 17, 2023. Id. ¶ 9. Anton has been employed as a server at the Restaurant from around September 2020 through the present. Id. ¶ 10. Velo was employed as a server at the Restaurant from around January 2021 through around April 2022. Id. ¶ 11. Pruitt has been employed as a server at the Restaurant from around September 2020 through the present. Id. ¶ 12.

Plaintiffs allege that Defendants violated numerous provisions of the Fair Labor Standards Act of 1938 (“FLSA”) and the New York Labor Law (“NYLL”). From around November 2020 through early 2023, Defendants established and imposed a tip pool on the food service workers at the Restaurant without distributing all of the incoming tips to the food service workers and while permitting two captains who acted in a managerial capacity to share in the tip pool. Id. ¶¶ 38, 46. The former allegation is based upon a discrepancy between the tips displayed on the application used by Defendants to monitor and track daily tips received at the Restaurant, namely the Toast Application, and the application used by Defendants to monitor and track the daily tips distributed to Defendants' food service workers, namely the Payday Application. Id. ¶ 39. Specifically, Plaintiffs identify three dates on which the Toast Application reflected more tips received by the Restaurant than were distributed to the food service workers:

(1) on or about December 4, 2021, the Toast Application reflected around $29,286.01 in total tips brought into the Restaurant and the Payday Application reflected around $26,108.41 in total tips distributed to the food service workers; (2) on or about December 11, 2021, the Toast Application reflected around $31,420.07 in total tips received by the Restaurant and the Payday Application reflected around $28,338.48 in total tips distributed to the food service workers; and (3) on or about December 31, 2021, the Toast Application reflected around $25,009.55 in total tips received by the Restaurant and the Payday Application reflected around $21,119.00 in total tips distributed to the food service workers. Id. ¶ 42. In addition, two captains-Susanna Holder and Aaron Blankfield-participated in the tip pool although they did not engage in any direct food service to patrons. Id. ¶ 48.

Plaintiffs further allege that Defendants had a widespread pattern and practice of withholding call-in pay from the food service workers, including Plaintiffs. Id. ¶ 50.

Defendants also required food service workers at the restaurant to wear uniforms. Female food service workers, including the female Plaintiffs, had to wear white button-down shirts, black dress pants, suspenders, and black dress shoes. Id. ¶ 56. Male food service workers, including the male Plaintiffs, had to wear white button-down shirts, black dress pants, vests, black ties, and black dress shoes. Id. ¶ 57. Plaintiffs allege that Defendants required the Plaintiffs to purchase and maintain their own uniforms. Id. ¶¶ 58-60.

Finally, Plaintiff Dzogovic claims that Defendants retaliated against her for asserting her FLSA and NYLL rights. Specifically, she alleges that around January 2023, she retained counsel and informed Defendants that she intended to bring wage and hour and tip claims against them. Id. ¶ 61. Around June 2023, Dzogovic and the other Plaintiffs informed Defendants that they would move forward with the lawsuit. Id. Defendants allegedly retaliated against Dzogovic by issuing two pretextual write-ups against her on approximately August 10, 2023 based on patron complaints about the taste of their food, and then terminating her employment on approximately August 17, 2023. Id. ¶¶ 62-63.

PROCEDURAL HISTORY

Plaintiffs initiated this action by complaint filed on October 12, 2023. Dkt. No. 9.^[1]

Plaintiffs filed a First Amended Complaint on December 7, 2023. Dkt. No. 25.^[2] Plaintiffs bring their FLSA claims as a collective action on behalf of themselves and similarly situated employees-namely, servers, bussers, runners, sommeliers, bartenders, barbacks and hostesses who fell into the category of “tipped employees” in the three years preceding the filing of the action. Id. ¶¶ 21, 23. They also bring claims as a Rule 23 class action on behalf of all food service employees employed by Defendants within six years prior to the filing of the Complaint. Id. ¶ 28.

Defendants filed the instant motion to dismiss along with supporting papers on December 19, 2023. Dkt. Nos. 27-29. On January 27, 2024, Plaintiffs filed a memorandum of law in opposition to the motion. Dkt. No. 32. On February 12, 2024, Defendants filed a reply memorandum of law in further support of the motion. Dkt. No. 36.

DISCUSSION

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must include “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 Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2006)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This “does not impose a probability requirement at the pleading stage” but rather “calls for enough fact to raise a reasonable expectation that discovery will reveal evidence [supporting the claim].” Twombly, 550 U.S. at 556; see also Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 46 (2011). That is, a complaint need not allege “detailed factual allegations,” but “a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555.

In reviewing a motion to dismiss under Rule 12(b)(6), a court “accept[s] all factual allegations as true, and draw[s] all reasonable inferences in the plaintiff's favor.” Austin v. Town of Farmington, 826 F.3d 622, 625 (2d Cir. 2016). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

The ultimate question is whether “[a] claim has facial plausibility, [i.e.,] the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

I. Wage and Tip Claims

Defendants argue that the Court must dismiss the First Amended Complaint's wage and tip claims. The First Amended Complaint alleges that Defendants violated both the FLSA and the NYLL by not distributing all of the tips brought into La Grande Boucherie to its food service workers. Dkt. No. 25 ¶ 43. It relies on two sets of factual allegations. First, the Toast and the Payday Applications which track daily tips received and daily tips distributed to food service workers contained discrepancies, reflecting that not all tips received were distributed. Id. ¶¶ 4142. Second, two captains, who acted as managers and not in any service capacity, shared in the tip pool. Id. ¶¶ 47-48.

As an initial matter, Defendants argue that the Court must dismiss Plaintiffs' minimum wage claim under the NYLL because the First Amended Complaint “does not actually allege- even in a conclusory fashion-that Defendants failed to pay Plaintiffs less than the statutory minimum wage.” Dkt No. 28 at 6. Under the NYLL, “an employee cannot state a claim for a minimum wage violation unless her average hourly wage falls below the minimum wage.” ...