UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 1:20-cv-22603-COOKE/GOODMAN

ERIC CHAVEZ, et al., 

Plaintiffs,

v. 

GRILL ENTERPRISES, LLC, et al., 

Defendants.

________________________________/ 

REPORT AND RECOMMENDATIONS ON

PARTIES’ CROSS-SUMMARY JUDGMENT MOTIONS

In this Fair Labor Standards Act (“FLSA”) and Florida Minimum Wage Act 

(“FMWA”) case, Plaintiff Erik Chavez (“Chavez”) filed minimum wage claims against 

Defendants stemming from his employment as a waiter at Defendants’ restaurant and a 

retaliation claim stemming from Defendants’ alleged adverse employment actions

(including termination) against Chavez for asserting his rights under the FLSA. [ECF No. 

7]. Plaintiff Leonel Diaz (“Diaz”) -- also a waiter at the restaurant -- filed an opt-in notice, 

joining in Chavez’s FLSA and FMWA minimum wage claims. [ECF No. 39].1

1 Defendants contend that Plaintiff Diaz joined only in Chavez’s FLSA claim (Count 

I) and not Chavez’s FMWA claim (Count II). [ECF No. 95, p. 2 n.1). Alternatively, 

Defendants argue that even if Diaz joined in both claims, Defendants are still entitled to 

summary judgment in their favor. For the reasons discussed below, neither argument is 

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Plaintiffs have now filed a renewed2 summary judgment motion, Defendants filed 

an opposition response, and Plaintiffs filed an optional reply. [ECF Nos. 100; 104; 108].

Plaintiffs also filed a statement of facts and Defendants filed a response to that statement 

of facts. [ECF Nos. 97; 103]. Additionally, each plaintiff filed a supplemental affidavit in 

support of their renewed summary judgment motion. [ECF Nos. 98-99].

Defendants also filed a renewed summary judgment motion. [ECF No. 95]. 

Plaintiffs filed an opposition response, and Defendants filed an optional reply. [ECF Nos. 

105; 109]. Defendants filed a statement of facts and Plaintiffs filed a response to that 

statement of facts. [ECF Nos. 96; 102].

United States District Judge Marcia G. Cooke referred the instant motions to the 

Undersigned for a Report and Recommendations. [ECF No. 101]. For the reasons outlined 

below, the Undersigned respectfully recommends that the District Court grant in part 

and deny in part the renewed summary judgment motions.

I. Background

In the operative complaint, Chavez alleges the following causes of action against 

both Defendants: failure to pay minimum wages in violation of the FLSA (Count I); 

failure to pay minimum wages in violation of the FMWA (Count II); and retaliation in 

persuasive.

2 As summarized below, the parties filed renewed summary judgment motions 

because Judge Cooke denied without prejudice their initial summary judgment motions. 

[ECF No. 94].

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violation of the FLSA (Count III). See Amended Fair Labor Standards Act Complaint [ECF 

No. 7 (“Amended Complaint”)].

Defendants filed an Answer and Affirmative Defenses. [ECF No. 22].3 Defendants 

raised thirteen affirmative defenses, including the following affirmative defenses:

THIRD AFFIRMATIVE DEFENSE

Plaintiff and/or Defendants are not subject to and/or are exempt under 

applicable statutes. Plaintiff was not individually engaged in interstate 

commerce.

FOURTH AFFIRMATIVE DEFENSE

Plaintiff and/or Defendants are not employees or employers under the 

applicable statutes. Plaintiff was not individually engaged in interstate 

commerce.

Id. at 5. 

On December 9, 2020, Diaz filed a consent to join as an opt-in plaintiff in this action. 

[ECF No. 39]. Therefore, as of that date, there were two plaintiffs in this case.

The instant cross-motions for summary judgment are the parties’ renewed motions 

3 Defendants unsuccessfully sought leave to amend paragraph 7 of their Answer, 

where they denied that the corporate defendant met the $500,000 threshold for enterprise 

coverage under the FLSA. [ECF No. 57]. In their motion, Defendants sought to amend 

paragraph 7 of their Answer to admit that the corporate defendant, at all relevant times, 

had a gross annual revenue in excess of $500,000. Id.

The Undersigned denied Defendants’ motion because they failed to establish good 

cause for modifying the Court’s scheduling order. [ECF No. 89]. In fact, Defendants did 

not discuss Fed. R. Civ. P. 16 in their motion for leave, or otherwise address the good 

cause standard. Id. at 5. At the time, the calendar call was scheduled for December 8, 2021 

and the trial was set for the two-week period commencing on December 13, 2021. See

[ECF No. 42].

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for summary judgment. Judge Cooke denied the parties’ first round of summary 

judgment motions because Plaintiffs failed to show they were covered employees under 

the FLSA. [ECF No. 94].4 Judge Cooke directed the parties “to file properly supported 

motions for summary judgment . . . addressing their entitlement to summary judgment 

on the issue of whether Plaintiffs were covered employees under the FLSA. Id. at 16.

Plaintiffs now move for summary judgment in their favor on the minimum wage 

claims (Counts I and II) of the Amended Complaint and on Defendants’ Third and Fourth 

Affirmative Defenses, which claim that Defendants were not statutory employers and 

were not engaged in interstate commerce. [ECF No. 100].

In their renewed motion, Defendants seek final summary judgment in their favor

on all claims based on: (1) Plaintiffs’ purported failure to establish that the corporate 

defendant is engaged in enterprise coverage under the FLSA; (2) Plaintiffs’ purported 

failure to show “that Defendants violated the minimum wage and/or tip credit provisions 

of the FLSA and/or that Defendants were not entitled [to] take a tip credit against the 

federal minimum wage”; (3) Plaintiffs’ purported failure to show violations under the 

FMWA; and (4) Plaintiff Chavez’s purported failure to adduce any facts or evidence 

supporting his FLSA retaliation claim. [ECF No. 95, p. 2].

4 Judge Cooke’s decision can also be found at Chavez v. Grill Enterprises, LLC, No. 

20-22603-CIV, 2022 WL 1642757 (S.D. Fla. Jan. 31, 2022).

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II. Undisputed Facts5

Plaintiffs and Defendants each submitted an initial statement of material facts. 

[ECF Nos. 96-97]. Both parties also submitted a response to the opposing party’s 

statement of facts. [ECF Nos. 102-03].

Plaintiffs

Plaintiffs were waiters at Los Parrilleros, a restaurant and bar.6 Los Parrilleros is 

operated as an Argentinian steakhouse and tavern.7

5 The facts are generated from the paragraphs in the statements of facts or responses 

to the statements of facts which the opposing party expressly agreed are undisputed. 

[ECF Nos. 96-97; 102-03]. For those purported facts which the opposing party classified 

as partly disputed, the Undersigned includes only the undisputed portions. The 

Undersigned sometimes changed the wording of an undisputed fact for stylistic and/or 

grammatical purposes. In addition, to enhance readability, I removed the specific record 

citations. They can be found in the source document, if needed.

6 In their own statement of undisputed facts, Defendants assert that “Grill 

Enterprises, LLC operates under the monikers ‘Los Parrilleros,’ a restaurant, and 

‘Parrilleros Tavern,’ a tavern.” [ECF No. 96, ¶ 1]. For summary judgment purposes 

however, this is a distinction without a difference. The Undersigned will refer to the 

restaurant and tavern collectively as “the restaurant” or “Los Parrilleros.” 

7 Plaintiffs also sought to add that many of the employees working at the restaurant 

were of Venezuelan national origin. [ECF Nos. 97, ¶ 11; 103, ¶ 11]. Although this fact is 

not disputed, Plaintiffs do not explain how this fact is relevant to their FLSA and FMWA 

claims. Therefore, it has been omitted from the “Undisputed Facts” portion of this Report 

and Recommendations.

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Chavez worked at Los Parrilleros from 2013 until June 2, 2020. Diaz worked at this 

establishment from the pay period beginning April 26, 2018 until November 2019.8

Defendant Grill Enterprises, LLC

Grill Enterprises, LLC and Ruben Sierra bought the restaurant and tavern in 2015. 

Grill Enterprises, LLC had annual gross sales revenues in excess of $500,000.00 for the 

years 2015 through 2020. 

Grill Enterprises, LLC employed people who on a regular and recurring basis 

handled, sold, or worked on goods and materials that travelled in interstate commerce.9

8 Diaz also worked as a busboy during 2013 and 2017. [ECF No. 97, ¶ 1, n.1]. This 

period of employment, however, is not relevant to the instant action.

9 Plaintiffs support this fact by citing to paragraphs 4-15 of their affidavits, where 

they, among other things, detail the ingredients, food, wines, and other beverages 

served/sold at the restaurant. [ECF No. 97, ¶ 5 (citing [ECF Nos. 98, ¶¶ 4-15; 99, ¶¶ 4-15]). 

Defendants attempt to “dispute” these facts by arguing that Plaintiffs “concealed” 

them during discovery and, for this reason, they must be stricken and/or disregarded by 

the Court. [ECF No. 103, ¶ 5 (“Plaintiffs attempt to raise ‘facts’ never disclosed during 

discovery about the food and menu items (i.e.[,] ‘goods’ and ‘materials’) at the restaurant. 

These ‘facts’ not disclosed during discovery must be disregarded by the Court.”)].

As evidence of Plaintiffs’ alleged concealment, Defendants cite Plaintiffs’ response 

to Defendant’s Interrogatory No. 13, which states:

13. If it is your contention that Defendants have income of $500,000 or 

more per year, or that Defendants are engaged in interstate commerce, or 

that you are engaged in interstate commerce or in the production of goods 

for commerce, please state in detail the basis for this contention and identify 

all documents pertaining thereto.

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Most employees, including all wait staff (such as Plaintiffs), on a regular and recurring 

basis, handled, sold, or worked on goods and materials, which had travelled in interstate 

commerce. These “goods” included food and beverages from all over the world, which 

employees of the restaurant -- including each Plaintiff -- prepared, handled, sold and then 

served to customers of the restaurant for their consumption.

Defendant Ruben Sierra

Answer: I am not aware of how much income the restaurant made for its 

owner per year, but the sales revenue is likely in excess of $500,000 per year, 

based upon sales during shifts I worked over the years. The documents 

which should reflect those revenues would include the sales receipts, bank 

statements and tax records of the restaurant and individual owners. 

Additionally, the restaurant served international cuisine to clientele 

which included people traveling from other countries. 

Id. (emphasis added). Defendants’ arguments are not convincing:

First, Defendants’ argument that Plaintiffs “concealed” these facts (i.e., the types 

of ingredients, foods, and beverages served/sold at Defendants’ restaurant) is not welltaken. At best, Plaintiffs can be criticized for failing to elaborate on what they meant by 

“international cuisine” served at the restaurant. However, it is impossible for Plaintiffs to 

have concealed from Defendants the types of food and beverages served/sold at 

Defendants’ own restaurant. Defendants, as owners of the restaurant, know the types of 

food and beverages served/sold at their own restaurant. 

Second, because Defendants have failed to directly refute these facts with actual 

evidence (for example, by filing an affidavit attesting under oath that the ingredients, 

foods, wines, and other beverages identified in Plaintiffs’ affidavits were not actually

served/sold at the restaurant), these facts are deemed admitted.

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Ruben Sierra (“Sierra”) is the sole owner of Grill Enterprises, LLC. At times, Sierra

was present at the restaurant.10 Sierra presided over at least one meeting in 2015.11

Sierra sometimes hired family members as managers. For a period of time, Sierra’s 

wife was a manager. Sierra also hired his sister-in-law, Vanessa Carrillo, as a manager.12

However, not all managers of the restaurant have been family members.

Sierra would personally introduce the managers to staff at open meetings.13

10 The parties dispute whether Sierra had an office at the restaurant and the

frequency and purpose of Sierra’s visits to the restaurant. [ECF Nos. 97, ¶¶ 8-9; 103, ¶¶ 

8-9]. According to Plaintiffs, Sierra was at the restaurant at least four times a week and 

had “complete autonomy over the operations of Grill Enterprises[, LLC].” [ECF No. 97, 

¶¶ 8-9]. Defendants maintain that Sierra’s visits to the restaurant were “sporadic” and 

“for the purpose of dining, not managing the restaurant.” [ECF No. 103, ¶ 9].

11 The parties dispute the number of meetings over which Sierra presided and who 

coordinated and directed operations, including scheduling. [ECF Nos. 97, ¶ 12; 103, ¶ 12]. 

According to Plaintiffs, Sierra regularly presided over meetings with kitchen and wait 

staff. [ECF No. 97, ¶ 12]. Defendants admit that Sierra presided over one meeting in 2015, 

when he purchased the restaurant, but claim that “meetings with kitchen and wait-staff 

to coordinate and direct operations, including scheduling” were conducted by the 

manager. [ECF No. 103, ¶ 12].

12 According to Defendants, “the manager of the restaurant [was] in charge and in 

control of employees’ employment and the restaurant’s operations. The manager [made] 

the hiring and firing decisions and other decisions with respect to employees, including 

wages, hours, shifts, [and] assignments.” [ECF No. 103, ¶ 10]. Plaintiffs refer to Ms. 

Carrillo as a “management surrogate.” [ECF No. 97, ¶14].

13 Plaintiffs claim that the purpose of Sierra introducing managers to staff was “so 

that all employees were aware of the familial relationship between [Sierra] and his 

management surrogates.” [ECF No. 97, ¶ 15]. Plaintiffs have failed to establish this fact 

for summary judgment purposes. First, Plaintiffs have not established that the 

restaurant’s managers were in fact Sierra’s surrogates. The degree of control Sierra 

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Sierra is responsible for signing Grill Enterprises, LLC’s tax returns. He also signed 

a Payroll Protection Plan Loan Application for pandemic relief, in which he represented 

himself to be the sole owner of Grill Enterprises, LLC.

In this action, Sierra verified answers to interrogatories for Grill Enterprises, LLC 

and for himself, individually. Defendants also produced Sierra as Grill Enterprises, LLC’s 

Federal Rule of Civil Procedure 30(b)(6) witness.14

exercised over the day-to-day operations of the restaurant (either directly or by proxy) is 

disputed by the parties. Second, Plaintiffs’ bases for this assertion are the affidavits of 

Chavez and Diaz. Id. However, Plaintiffs do not explain how they are competent to testify 

about Sierra’s state of mind or motives when he introduced managers to employees.

14 Plaintiffs insist that because Sierra was Grill Enterprises, LLC’s 30(b)(6) witness, 

this means Sierra was the witness with [the] most knowledge concerning the topics listed 

in the Rule 30(b)(6) notice, including “compliance with FLSA requirements.” [ECF No. 

97, ¶ 23]. Plaintiffs are mistaken. As the Court in QBE Ins. Corp. v. Jorda Enterprises, Inc.

explained:

[Rule 30(b)(6)] does not expressly or implicitly require the corporation or 

entity to produce the “person most knowledgeable” for the corporate 

deposition. Nevertheless, many lawyers issue notices and subpoenas which 

purport to require the producing party to provide “the most 

knowledgeable” witness. Not only does the rule not provide for this type 

of discovery demand, but the request is also fundamentally inconsistent 

with the purpose and dynamics of the rule. As noted, the witness/designee 

need not have any personal knowledge, so the “most knowledgeable” 

designation is illogical. PPM Fin., Inc. v. Norandal USA, Inc., 392 F.3d 889, 

894–95 (7th Cir. 2004) (rejecting argument that trial court should not have 

credited the testimony of a witness who lacked personal knowledge 

because the witness was a 30(b)(6) witness and “was free to testify to 

matters outside his personal knowledge as long as they were within the 

corporate rubric”). Moreover, a corporation may have good grounds not to 

produce the “most knowledgeable” witness for a 30(b)(6) deposition. For 

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Payroll and Record Keeping

Plaintiffs have divided their term of employment into two periods (Phase I and 

Phase II). Phase I covers the time period beginning January 2, 2017 through January 2, 

2019. Phase II includes the period beginning January 3, 2019 through the end of each 

Plaintiff’s employment (June 2, 2020 for Chavez and November 2019 for Diaz). 

Facts Common to Phase I and Phase II

During both Phase I and Phase II:

1. Customers of the restaurant regularly provided “tips” or “gratuities” 

(collectively, “tips”) to Plaintiffs for their service as waiters; 

2. Plaintiffs reported their tips to the restaurant through an automated 

computer program, such that their “total tips” during any given pay period 

were recorded in shift report records maintained by the restaurant; 

3. The restaurant took the maximum “tip credit” allowed and memorialized 

example, that witness might be comparatively inarticulate, he might have a 

criminal conviction, she might be out of town for an extended trip, he might 

not be photogenic (for a videotaped deposition), she might prefer to avoid 

the entire process or the corporation might want to save the witness for trial. 

From a practical perspective, it might be difficult to determine which 

witness is the “most” knowledgeable on any given topic. And permitting a 

requesting party to insist on the production of the most knowledgeable 

witness could lead to time-wasting disputes over the comparative level of 

the witness’ knowledge. For example, if the rule authorized a demand for 

the most knowledgeable witness, then the requesting party could 

presumably obtain sanctions if the witness produced had the second most 

amount of knowledge. This result is impractical, inefficient and 

problematic, but it would be required by a procedure authorizing a demand 

for the “most” knowledgeable witness. But the rule says no such thing.

277 F.R.D. 676, 688–89 (S.D. Fla. 2012). 

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this practice in Plaintiffs’ paystubs;

4. From the tips generated by the Plaintiffs, they were required15 to “tip out” 

20% of their tips to the bussers, and an additional flat amount of (variably) 

$15-$25 to each “bartender” who worked during their shift.

5. Because the vast majority of transactions between the restaurant and 

customers were credit card transactions, Defendants controlled16 the 

disbursement of the tip revenues back to the Plaintiffs. 

At all times, Plaintiffs received more than $30 per month in tips.

Phase I (January 2, 2017 through January 2, 2019) 

During Phase I, on a biweekly basis (every other Friday), Defendants would issue 

a paystub and a supposed corresponding “paycheck” to the waiters (including Plaintiffs), 

purporting to pay them for the hours they worked. The paystubs showed that the 

restaurant took a “tip credit” in a gross amount from Plaintiffs’ tips. The paystubs would 

total $0.00 or a negligible amount.

Phase II (January 3, 2019 through the End of Employment)

15 Defendants dispute the word “required,” as used in this sentence. [ECF No. 103, ¶ 

26d]. But, other than lodging their complaint, Defendants cite to no record evidence to 

support their objection to the use of this word. Id. “Federal Rule of Civil Procedure 56 

requires a party disputing a fact to cite ‘to particular parts of materials in the record[.]’” 

Desire v. Jamalullah, No. CV 120-150, 2022 WL 737465, at *1, n.2 (S.D. Ga. Feb. 10, 2022), 

report and recommendation adopted, No. CV 120-150, 2022 WL 736263 (S.D. Ga. Mar. 10, 

2022) (quoting Fed. R. Civ. P. 56(c)(1)). Because Defendants have failed to meet their 

obligation under Rule 56(c)(1), this fact is deemed admitted.

16 Defendants object to the word “controlled” but cite no record evidence (or any 

evidence) to support their objection. [ECF No. 103, ¶ 26e]. Because Defendants have not 

met their obligation under Rule 56(c)(1), this fact is deemed admitted.

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During Phase II, Defendants substantially changed the method they used to 

compensate Plaintiffs (and other waiters) in the following ways:

1. Defendants no longer disbursed Plaintiffs’ tips in cash on a daily basis. 

Instead, Defendants issued a single check or DD (with an actual value 

greater than $0.00) on the regularly scheduled payday. This amount 

consisted of a combined figure purporting to distribute both the 

disbursement of Plaintiff’s tips and the payment of their reduced hourly 

wages.

2. Defendants also prepared handwritten calculations for every pay period 

which purport to account for Plaintiffs’ tip pool contributions (“Tip Pool 

Calculations”). These calculations reflected that Plaintiffs’ total tips were 

reduced by the 20% tip out to bussers, the flat tip out to “bartenders,” and 

an additional flat 3% reduction taken from Plaintiffs’ tips to account for 

credit card vendor charges. By documenting the amounts each server paid

for all of those “tip out” and vendor charges, Defendants then purported to 

disburse to Plaintiffs the “cash tips owed” reflected in their paystubs, which 

was the total tips minus less those described charges against tips retained 

by the restaurant.

3. The tax withholdings reflected on the paychecks issued to the waiters no 

longer equaled the amount due on account of hourly wages. A single 

paycheck was issued to compensate for hourly wages at the reduced hourly 

rate, plus tips, less the tip pool contributions, reduced by the statutory tax 

withholdings based upon those earnings.

4. During Phase II, some of the payroll records include the names of what 

appear to be entities (as opposed to individuals) including: Alejandro C. 

Chef, VIP Crew, Consultora Lantinoamericana, Jacob Supply and T&S. See, 

e.g., [ECF No. 98-7, p. 37].17

17 Defendants object to this fact by citing portions of Chavez’s deposition testimony. 

[ECF No. 103, ¶ 28d (citing [ECF No. 96-2, pp. 74:15-75:8])]. In the cited portion of his 

deposition, Chavez testified that he did not know if bussers and bartenders were 

employees of Grill Enterprises, LLC or contractors and did not know how they were paid. 

[ECF No. 96-2, pp. 74:15-75:8]. However, Plaintiffs are not seeking to rely on Chavez’s 

deposition testimony. Instead, they cite payroll records obtained from Defendants which 

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Plaintiffs have identified one person (i.e., Cesar Pacheco) who Plaintiffs frequently 

paid 20% of their tips to and who was not listed as an employee in Grill Enterprises, LLC’s 

Employer’s Quarterly Report filed with the Florida Department of Revenue. [ECF Nos. 

98-8; 99-8].

Mariana Pinto also worked at the restaurant. At some point in time, she had the

title of Assistant Manager.18 Plaintiffs frequently had to pay a flat fee from their tips to 

Pinto as a “bartender.” [ECF No. 97, ¶ 29c].

19

list what appear to be entities. See, e.g., [ECF No. 98-7, pp. 22, 25].

According to Plaintiffs, these were non-employees/contractors who worked as 

bussers, dishwashers, and kitchen workers. [ECF No. 97, ¶ 28d]. Defendants point out 

that dishwashers and kitchen workers did not take part in the tip pool and therefore their 

status as employees or independent contractors is entirely irrelevant. [ECF No. 103, ¶ 

28d]. Defendants do not dispute, however, that Plaintiffs paid tips to bussers. See, id. at ¶ 

27 (“Plaintiffs themselves controlled and retained all of their tips, except the amounts 

they tipped out to bussers (20%) and bartenders ($15-$25).”). On the other hand, Plaintiffs 

do not identify which of the listed entities were actually bussers and therefore 

participants in the tip pool. In any event, Defendants’ payroll records include the names 

of entities, in addition to the names of individuals.

18 Plaintiffs state, in a conclusory manner, that Sierra hired Mariana Pinto (directly 

or indirectly, through Vanessa Carrillo) to serve as his surrogate Assistant Manager. [ECF 

No. 97, ¶ 16]. Plaintiffs cite their own affidavits. Id. (citing [ECF Nos. 98, ¶ 26; 99, ¶ 26]) 

However, Plaintiffs provide no factual basis for their assertion that Pinto was a mere 

surrogate of Sierra or that Sierra (either directly or indirectly) hired Pinto. Therefore, 

Plaintiffs have not established either fact for summary judgment purposes.

19 During his deposition, Plaintiff Chavez described Mariana’s job duties as follows:

Q. What was Mariana’s job at the restaurant?

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Defendants also charged Plaintiffs a 3% fee for credit card transactions.20

 Chavez’s Termination

Chavez believes he was terminated by Grill Enterprises, LLC because: (1) he asked 

why his checks were made out for zero dollars and (2) he sometimes complained he had 

to use his own cash to make change for customers.

The restaurant closed for a period of time starting in March 2020 due to the 

COVID-19 pandemic. It then reopened for a period of time for take-out service only.

At the end of May 2020, Chavez became ill with the flu and took two to three days 

off to recover. The following week, on June 2, 2020, Vanessa Carrillo (the manager) told 

Chavez that his services were no longer needed.

III. Applicable Legal Standard

On a motion for summary judgment, the Court must construe the evidence and 

factual inferences arising therefrom in the light most favorable to the nonmoving party. 

A. She acted both as a manager and as a hostess. And sometimes as a 

bartender. Whatever was needed at the restaurant. 

[ECF No. 96-2, p. 114:24-115:2]. 

20 Plaintiffs contend that the 3% charge was “greater than the percentage the credit 

[card] vendors actually charge the [restaurant].” [ECF No. 97, ¶ 29d]. The only evidence 

cited by Plaintiffs are payroll records reflecting the 3% charge imposed on Plaintiffs by 

their employer. See [ECF Nos. 98, ¶ 53d (citing [ECF No. 98-7, p. 39]); 99, ¶ 51d (citing

[ECF No. 99-7, p. 4])]. They cite no record evidence concerning the actual percentage(s) 

charged by the credit card companies to the restaurant. 

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Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Summary judgment can be entered on 

a claim only if it is shown that “there is no genuine dispute as to any material fact and 

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In addition, 

under Federal Rule of Civil Procedure 56(f)(1), the Court may grant summary judgment 

for the nonmoving party “[a]fter giving notice and a reasonable time to respond.” See 

Gentry v. Harborage Cottages-Stuart, LLLP, 654 F.3d 1247, 1261 (11th Cir. 2011).

The Supreme Court has explained the summary judgment standard as follows:

[T]he plain language of [Rule 56] mandates the entry of summary judgment, 

after adequate time for discovery and upon motion, against a party who 

fails to make a showing sufficient to establish the existence of an element 

essential to that party’s case, and on which that party will bear the burden 

of proof at trial. In such a situation, there can be no genuine issue as to any 

material fact, since a complete failure of proof concerning an essential 

element of the non-moving party’s case necessarily renders all other facts 

immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (internal quotation omitted).

The Court’s function at this juncture is not “to weigh the evidence and determine 

the truth of the matter but to determine whether there is a genuine issue for trial.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). A dispute about a material fact 

is genuine if the evidence is such that a reasonable factfinder could return a verdict for 

the nonmoving party. Id. at 248; see also Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir. 

1989).

The party moving for summary judgment “always bears the initial responsibility 

of informing the district court of the basis for its motion, and identifying those portions 

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of the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together 

with affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of 

material fact.” Celotex, 477 U.S. at 323.

Once the movant makes this initial demonstration, the burden of production, not 

persuasion, shifts to the nonmoving party. The nonmoving party must “go beyond the 

pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, 

and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for 

trial.’” Id. at 324; see also Fed. R. Civ. P. 56(c). To meet this burden, the nonmoving party 

“must do more than simply show that there is a metaphysical doubt as to the material 

facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). That party 

must demonstrate that there is a “genuine issue for trial.” Id. at 587. An action is void of 

a material issue for trial “[w]here the record taken as a whole could not lead a rational 

trier of fact to find for the nonmoving party.” Id.

“The standard . . . on cross-motions for summary judgment does not differ from 

the standard applied when only one party files such a motion.” Sec. & Exch. Comm'n v. 

Keener, No. 20-CV-21254, 2022 WL 196283, at *5 (S.D. Fla. Jan. 21, 2022). “[O]n crossmotions for summary judgment, . . . [the Court] view[s] the facts in the light most 

favorable to the nonmoving party on each motion.” James River Ins. Co. v. Ultratec Special 

Effects Inc., 22 F.4th 1246, 1251 (11th Cir. 2022).

IV. Analysis

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A. Plaintiffs’ Renewed Summary Judgment Motion

As noted above, Plaintiffs seek summary judgment in their favor on their FLSA 

and FMWA claims (Counts I and II), on the issue of enterprise coverage, and on Sierra’s 

status as an FLSA employer. The Undersigned will first address the issue of enterprise 

coverage, then Sierra’s purported FLSA employer status, and, lastly, Plaintiffs’ minimum 

wage claims.

i. Defendant Grill Enterprises, LLC is an “Enterprise” under the 

FLSA

The Eleventh Circuit has stated that:

An employer falls under the enterprise coverage section of the FLSA if it 1) 

“has employees engaged in commerce or in the production of goods for 

commerce, or that has employees handling, selling, or otherwise working 

on goods or materials that have been moved in or produced for commerce 

by any person” and 2) has at least $500,000 of “annual gross volume of sales 

made or business done.”

Polycarpe v. E&S Landscaping Serv., Inc., 616 F.3d 1217, 1220 (11th Cir. 2010) (quoting 29 

U.S.C. § 203(s)(1)(A)). The Undersigned will address the two prongs of enterprise 

coverage in reverse order.

1. $500,000.00 Jurisdictional Threshold

Defendants do not dispute that, at all relevant times, Grill Enterprises, LLC met 

the $500,000 jurisdictional threshold. See [ECF No. 104, p. 3 (“Defendants do not contest 

that they had gross sales over $500,000.”)]. Therefore, the second prong of enterprise 

coverage is met.

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2. Defendants Employed Persons Who Regularly Handled 

Materials That Had Moved in Interstate Commerce

Following the first round of summary judgment motions, Judge Cooke 

determined that Plaintiffs had failed to establish the first prong of enterprise coverage 

because the evidence submitted by Plaintiffs “plainly [did] not establish that Defendants 

employed people who regularly handle[d] materials that ha[d] necessarily moved 

through interstate commerce.” [ECF No. 94, p. 11].

Judge Cooke found Plaintiffs’ failure to meet prong one “disconcerting given that 

this case ha[d] been pending for almost two-years and, yet, to date, Plaintiffs ha[d] not 

demonstrated that they adduced any evidence to demonstrate that they or any of 

Defendants’ employees handled materials that moved through interstate commerce.” Id.

She noted this was a “low bar” which Plaintiffs could have cleared “if they had come 

forth with evidence demonstrating that the food (or even just the ingredients used in 

those food dishes) and alcohol Defendants sold at their restaurant and tavern originated 

from outside the State of Florida.” Id.

In their renewed motion (and supporting documents), Plaintiffs have remedied

this oversight. They have filed supplemental affidavits from Chavez and Diaz attesting, 

among other things, that some of the food and beverages served at the restaurant came 

from outside of Florida. See [ECF Nos. 98, ¶¶ 11-13; 99, ¶¶ 11-13 (listing items, including

sausages from Argentina; cheese from Italy; capers, olives, and olive oils from Italy 

and/or Spain; saffron from Iran, Spain, France, Italy and/or India; wines from Argentina, 

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19

France, Spain, Italy, and California; espresso and mineral water from Italy; beer from 

Holland and Mexico; and liquors from Canada, Scotland, Ireland, France, Tennessee, and 

Texas)].

Nonetheless, Defendants continue to insist that Plaintiffs cannot meet the first 

prong of enterprise coverage because the details provided in Plaintiffs’ supplemental 

affidavits were not included in their discovery responses:

Aside from a passing unsubstantiated reference to “international cuisine” 

Plaintiffs provided no evidence of out-of-state “goods” or “materials” used 

by Plaintiffs or other employees. But now in their affidavits, provided long 

after the close of discovery, Plaintiffs attempt to allege “facts” never 

disclosed during discovery about the food and menu items (i.e. “goods” 

and “materials”) at the restaurant. These “facts” not disclosed during 

discovery must be disregarded by the Court.

[ECF No. 104, p. 4].

Defendants accuse Plaintiffs of “concealing” these facts by “not identify[ing] 

[during the discovery period] a single ‘good’ or ‘material’ used at Defendants’ business 

that had travelled in interstate commerce” and “ambush[ing] Defendants with previously 

undisclosed information, in order to evade summary judgment (and also avoid inquiry 

as to the source of their ‘personal knowledge’ of the out-of-state nature of the goods and 

materials“). Id. at 5.

Defendants proceed to argue that “[t]he law is well-settled that failing to include 

responsive matter in discovery responses may result in exclusion of the omitted matter 

from evidence.” Id. at 4 (citing out-of-district cases). They note that Plaintiffs knew from 

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Defendants’ Answer and their Third and Fourth Affirmative Defenses that enterprise 

coverage was an issue in this case and yet Plaintiffs failed to “fully and completely” 

respond to discovery. Id. at 5. According to Defendants, had Plaintiffs provided the 

information contained in their supplemental affidavits during the discovery period, then 

“Defendants could have inquired into the foundation and basis of Plaintiffs’ professed 

keen knowledge of the origin and previous out-of-state whereabouts of the food and 

menu items at Defendants’ business.” Id.

Defendants’ arguments are not well taken. First, Defendants’ claims of 

concealment and ambush are undermined by the fact that Defendants had access to the 

same facts as Plaintiffs. In other words, Defendants knew the ingredients, food, and 

beverages used/offered by their restaurant because Defendants own the restaurant. 

Second, Defendants were free, in opposing Plaintiffs’ summary judgment motion, to file 

their own, competing affidavit(s) if the foods, ingredients, and beverages listed in 

Plaintiffs’ supplemental affidavits were not in fact served/sold at Defendants’ restaurant. 

They did not do so.

Moreover, Defendants’ insinuation that Plaintiffs -- who were both waiters at the 

restaurant -- are not competent to testify about the food and beverages they personally 

served during their years’ long period of employment is not persuasive. It does not take 

any specialized knowledge beyond the reading of packaging and labels to attest to the 

origins of some of the ingredients, foods, and beverages listed in Plaintiffs’ affidavits. See,

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e.g., [ECF No. 98, ¶ 11(e)(i) (“The meat sold at ‘Los Parrilleros’ arrives in clearly marked 

boxes from Texas in the USA.”)].

21 Surely, Defendants are not suggesting that saffron is 

locally grown in Florida or that there are vineyards producing Malbec wine in this state.

Courts in this District have noted the first prong of enterprise coverage can be met 

where ingredients or items used or served at a restaurant come from outside of Florida

See, e.g., Torres v. Rock & River Food Inc., 244 F. Supp. 3d. 1320, 1330-31 (S.D. Fla. 2016) 

(granting plaintiff’s cross motion for summary judgment on enterprise coverage where 

“the foodstuffs ordered [by the restaurant] [we]re materials and a reasonable jury could 

only conclude that the ingredients used by the [d]efendants crossed state lines and were 

regularly and recurrently handled by two employees”); Garcia v. Pajeoly Corp., No. 18-

CV-23399-CIV, 2019 WL 4540745, at *2 (S.D. Fla. Sept. 19, 2019), on reconsideration, No. 

18-CV-23399-CIV, 2019 WL 5079560 (S.D. Fla. Oct. 10, 2019) (“[T]he undisputed facts 

show that La Ventana sold beer and food from other countries during this time, and that 

La Ventana had five to six employees working in the restaurant. Therefore, La Ventana 

is subject to FLSA enterprise coverage.” (citation to the record omitted)); Lopez v. Top Chef 

21 In Walsh v. Freeman Sec. Servs., Inc., for instance, the court denied summary 

judgment for the defendants on the issue of enterprise coverage where “the Secretary [of 

Labor] ha[d] produced evidence from which a reasonable factfinder could determine that 

enterprise coverage exist[ed],” including “[t]he manufacturing tags on the [security 

guards’] uniforms [which] read ‘Made in China’ and ‘Made in El-Salvador.’” No. 8:21-

CV-217-VMC-AEP, 2022 WL 445501, at *6 (M.D. Fla. Feb. 14, 2022). The court in Walsh

specifically noted that “[t]he manufacturing tags on the uniforms create[d] a reasonable 

inference that the guards’ uniforms traveled through interstate commerce.” Id.

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Inv., Inc., No. 07-21598-CIV, 2007 WL 4247646, at *2 (S.D. Fla. Nov. 30, 2007) (“The Court 

finds it reasonable to infer that some of the goods used in the [r]estaurant moved in 

interstate commerce before they were delivered to the [r]estaurant, so the first prong of 

enterprise coverage is satisfied.”).

Here, Plaintiffs have each submitted an affidavit attesting to the ingredients, food,

and beverages used or sold at the restaurant which came from outside of Florida. 

Defendants have not refuted Plaintiffs’ statements that these ingredients, food, and 

beverages were used, served, or sold at their restaurant. Therefore, based on the 

undisputed record, Plaintiffs have met the first prong of enterprise coverage.

Given the unrefuted record evidence presented by Plaintiffs, the Court should find 

that Plaintiffs have met the first prong and, together with the conceded second prong, 

have established that enterprise coverage exists as a matter of law in this case.

ii. Grill Enterprises, LLC was Plaintiffs’ FLSA Employer as a Matter 

of Law

Plaintiffs seek summary judgment on the issue of Grill Enterprises, LLC being 

Plaintiffs’ employer under the FLSA. The FLSA defines the term “employer” to include 

“any person acting directly or indirectly in the interest of an employer in relation to an 

employee[.]” 29 U.S.C. § 203(d). The FLSA’s definition of “employer” is “broad” and 

“encompasses both the employer for whom the employee directly works as well as ‘any 

person acting directly or indirectly in the interests of an employer in relation to an 

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employee.’” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1298 (11th Cir. 

2011) (quoting 29 U.S.C. § 203(d)).

In support of their argument that Grill Enterprises, LLC was their employer under 

the FLSA, Plaintiffs cite: (1) payroll records and time records demonstrating Plaintiffs 

worked for the restaurant; (2) Grill Enterprises, LLC’s quarterly tax returns, listing the 

wages paid to “employees” every quarter, including Plaintiffs; and (3) tip pool 

calculations, which included Plaintiffs. [ECF No. 100, p. 10].

To the extent that Defendants address this argument, they do so in the context of 

Plaintiffs’ purported failure to establish enterprise coverage against either Defendant:

[T]o establish liability against Sierra, it is not enough that Plaintiffs succeed 

in arguing that Grill Enterprises[, LLC] and/or Sierra are their “employer,” 

but rather, Plaintiffs must also establish that Plaintiffs were employed by an 

“enterprise” as that term is defined by the FLSA . . . . In this case, where 

Plaintiffs failed to prove “enterprise coverage” against Grill Enterprises[, 

LLC], not only must their claims against the corporate entity fail, but the 

derivative claims against Ruben Sierra must fail as well.

[ECF No. 104, p. 7].

However, and as discussed above, the unrefuted record evidence in the instant 

action establishes enterprise coverage. Moreover, in the absence of any competing 

evidence from Defendants, the undisputed record evidence cited by Plaintiffs -- including 

payroll records and quarterly tax returns -- sufficiently establishes as a matter of law that 

Grill Enterprises, LLC was Plaintiffs’ statutory employer.

iii. Genuine issues of Material Fact Preclude Summary Judgment for 

Plaintiffs on Sierra’s Status as an FLSA Employer

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Plaintiffs also seek summary judgment in their favor on Sierra’s status as an 

employer under the FLSA. According to Plaintiffs, “Sierra is individually liable as an 

officer and the sole owner of the business who clearly enjoys operational control.” [ECF 

No. 108, p. 5]. Defendants dispute this contention. They argue that Plaintiffs are not 

entitled to summary judgment on this issue because “there are factual disagreements as 

to the operational control over Grill Enterprises, LLC exercised by Sierra.” [ECF No. 104, 

p. 1].

22

“The FLSA defines an employer as including ‘any person acting directly or 

indirectly in the interest of an employer in relation to an employee.’” Moore v. Appliance 

Direct, Inc., 708 F.3d 1233, 1237 (11th Cir. 2013) (quoting 29 U.S.C. § 203(d)). “[A]n 

employer is not only a company for whom the employee directly works but also includes 

‘any person who (1) acts on behalf of that employer and (2) asserts control over conditions 

of the employee’s employment.’” Cabreja v. SC Maint., Inc., No. 8:19-CV-296-T-33CPT, 

2019 WL 2931469, at *3 (M.D. Fla. June 19, 2019), report and recommendation adopted, 

No. 8:19-CV-296-T-33CPT, 2019 WL 2929325 (M.D. Fla. July 8, 2019) (quoting Josendis, 662 

22 Defendants also argue that because Plaintiffs purportedly cannot establish 

enterprise coverage for Grill Enterprises, LLC, then Plaintiffs’ claims against Sierra 

should also be dismissed. [ECF No. 104, p. 7 (“[W]here Plaintiffs failed to prove 

‘enterprise coverage’ against Grill Enterprises[, LLC], not only must their claims against 

the corporate entity fail, but the derivative claims against Ruben Sierra must fail as 

well.”)]. However, and as discussed above, Plaintiffs have established enterprise coverage 

as a matter of law in the instant case. Therefore, Defendants’ alternative argument 

concerning Sierra fails.

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F.3d at 1298). “Whether an individual falls within this definition [of employer] ‘does not 

depend on technical or ‘isolated factors but rather on the circumstances of the whole 

activity.’” Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1160 (11th Cir. 

2008) (quoting Hodgson v. Griffin & Brand of McAllen, Inc., 471 F.2d 235, 237 (5th Cir. 1973)).

“The overwhelming weight of authority is that a corporate officer with operational 

control of a corporation’s covered enterprise is an employer along with the corporation, 

jointly and severally liable under the FLSA for unpaid wages.” Patel v. Wargo, 803 F.2d 

632, 637-38 (11th Cir. 1986) (quoting Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir. 1983)).

To hold an individual liable as an employer under the FLSA, he “must either be 

involved in the day-to-day operation or have some direct responsibility for the 

supervision of the employee,” but that individual “need not have exclusive control of a 

corporation’s everyday workings, so long as he has operational control of significant 

aspects of the corporation’s day to day functions.” Angulo v. Il Gabiano Miami, LLC, No. 

19-21352-CIV, 2019 WL 6699684, at *2 (S.D. Fla. Dec. 9, 2019) (quoting Gonzalez v. Metro. 

Delivery Corp., No. 10-23296-CIV, 2012 WL 1442668, at *8 (S.D. Fla. Apr. 26, 2012)).

In Angulo, for instance, the Court found as a matter of law that the individual 

defendants were not employers under the FLSA where they “spent limited time at the 

restaurant and were not involved with the employees, scheduling, or operations” and 

“[t]hese responsibilities were delegated to . . . the [c]ontroller, or . . . the [m]anager.” 2019 

WL 6699684, at *3.

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On the other hand, in Reddish v. Epoca Corp., the Court found that genuine issues 

of material fact precluded summary judgment on the issue of whether the individual 

defendant was an FLSA employer. No. 1:17-CV-21206-JLK, 2019 WL 5535390, at *6 (S.D. 

Fla. Oct. 25, 2019). In Reddish, the plaintiff claimed the individual defendant “directed 

[plaintiff]’s work, had the authority to hire and fire employees, managed the day-to-day 

operations of [the corporate defendant], directed [the plaintiff] on which job sites to 

attend, signed [the plaintiff]’s paychecks, and transported [the plaintiff] to and from job 

sites.” Id. The defendants claimed the individual defendant did not “maintain 

employment records, . . . supervise or control the work of employees, . . . manage the 

daily operations of [the corporate defendant], or [have] the power to hire and fire 

employees,” but merely “purchase[d] materials necessary for [the corporate defendant]’s 

construction projects.” Id. Based on this disputed record, the Court denied the 

defendants’ summary judgment motion.

Here, Defendants argue that the Court should deny summary judgment to 

Plaintiffs on this issue because “there still . . . remain factual issues as to whether . . . Sierra 

himself was Plaintiffs’ ‘employer’ as that term is defined by the FLSA.” [ECF No. 104, p. 

7]. Specifically, Defendants note that:

While Sierra is admittedly the owner, the restaurant is operated on a dayto-day basis by its manager. Sierra sometimes speaks to his manager as little 

as once per month. Further, Sierra does not maintain an office at the 

restaurant, his physical presence at the restaurant is sporadic, at best, and 

his presence is usually for the purpose of dining, not managing the 

restaurant. Sierra does not make it clear that he is in charge and he that [sic] 

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he has complete authority over their [sic] employment and the restaurant’s 

operations. To the contrary, the manager of the restaurant is in charge and 

in control of employees’ employment and the restaurant’s operations. The 

manager makes the hiring and firing decisions and other decisions with

respect to employees, including wages, hours, shifts, assignments, etc. Also, 

meetings with kitchen and wait-staff to coordinate and direct operations, 

including scheduling, were conducted by the manager, not Sierra. All 

scheduling was handled by the manager. Sierra did not resolve 

performance issues and conflicts among service employees and other

employees or contractors who worked at the restaurant.

Id. at 7-8.

Plaintiffs argue that “[t]he record makes clear that . . . Sierra is the founder, officer, 

sole owner, and chief operator of a restaurant he operates and controls implicitly” and 

that “Sierra was and remains operationally involved, both directly and indirectly, in 

every operational aspect of the restaurant and holds himself out accordingly” and cite to 

certain portions of their statement of undisputed facts [ECF No. 100, p. 11 (citing [ECF 

No. 97, ¶¶ 8-23])].

However, many of the “facts” marshaled by Plaintiffs in support of Sierra’s 

purported control over the day-to-day operations of the restaurant are not supported by 

competent evidence. For instance, Plaintiffs’ affidavits are replete with references to 

Sierra’s use of “surrogate” managers or a “surrogate” assistant manager. However, 

Plaintiffs fail to explain the basis for their belief that there was an alleged surrogacy. For 

example, they have not submitted evidence that the manager would not approve a 

schedule change without consulting with Sierra.

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Plaintiffs also state, in a conclusory fashion, that “Sierra would specifically enforce 

the requirement that service employees contribute to a ‘[t]ip [p]ool’ from the gratuities 

they earned, by making cash payments to bussers and bartenders.” [ECF No. 97, ¶ 17].23

To support this fact, Plaintiffs cite to Chavez’s affidavit, which makes the same 

conclusory statement. Id. (citing [ECF No. 98, ¶ 27 (“Sierra himself would specifically 

enforce the requirement that ‘[w]aiters’ contribute to the ‘[t]ip [p]ool’ from the gratuities 

23 This sentence is inartfully drafted because it can be read as Sierra “making cash 

payments to bussers and bartenders” or service employees “making cash payments to 

bussers and bartenders.” What it means to say is that service employees (such as 

Plaintiffs) were required to make cash payments to bussers and bartenders. Although the

above sentence is not a model of clarity, the record makes clear that Plaintiffs themselves

and other service employees (not Sierra) were the ones who made the cash payments to 

bussers and bartenders. See Supplemental Affidavit of Chavez [ECF No. 98, ¶ 38 (“From 

the 80% (sometimes 90%) of the ‘[t]otal [t]ips’ disbursed to me in cash, the Defendants 

required that I then then [sic] also pay – in cash – 20% of those tips to bussers, and an 

additional flat amount of (variably) $15-$25 to each ‘bartender’ working each shift; I 

disbursed these ‘tip out’ payments on a daily basis, in cash, from my own Tips

disbursed by Defendants.” (emphasis added))]; Supplemental Affidavit of Diaz [ECF No. 

99, ¶ 37 (same)]; ECF No. 100, p. 16 (“Plaintiffs would receive cash from the Employer on 

account of their tips, and then have to redistribute to others in cash.” (emphasis 

added))]; [ECF No. 108, p. 9 (“during Phase I[,] Plaintiffs themselves distributed their 

tip pool payments to bussers and bartenders from the net-cash tips they received from 

the employer. There is no suggestion in the record that Defendants made the tip pool 

distributions during ‘Phase I.’” (emphasis added))]. In any event, Plaintiffs do not

provide any factual support for the conclusory statement that it was Sierra who

“specifically enforce[d]” the tip pool. [ECF No. 97, ¶ 17].

Additionally, Sierra disputes this fact in his unsworn declaration. [ECF No. 103-1, 

¶ 9 (“I had no part in ‘enforcing’ the tip pool. The tip pool was managed by the employees 

themselves, as well as managers and payroll personnel.”)]. Therefore, Plaintiff’s 

statement that Sierra “specifically enforce[d]” employee contributions to the tip pool is 

both an unsupported, conclusory assertion and factually disputed by Sierra.

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we earned, by making cash payments to bussers and bartenders.”)]). Plaintiffs fail to 

explain how -- in what manner or what means -- Sierra enforced the tip pool contributions 

made by the waiters.

Plaintiffs also contend that “Sierra would occasionally resolve performance issues 

and conflicts among service employees and other employees or contractors who worked 

at the restaurant.” [ECF No. 97, ¶ 18]. Plaintiffs do not provide any factual details or cite 

examples of instances when Sierra resolved performance issues or conflicts between the 

employees. Plaintiffs merely rely on the affidavits of Chavez and Diaz, which provide the 

same level of detail (or lack thereof) as the above conclusory statement, albeit in a sworn 

averment. See [ECF Nos. 98, ¶ 28 (“Sierra would occasionally resolve performance issues 

and conflicts among service employees and other employees or contractors who worked 

at the restaurant.”); 99, ¶ 27 (same)].24

These conclusory statements, devoid of any supporting facts, are insufficient to 

meet Plaintiffs’ burden, as the moving party, to show that they are entitled to summary 

judgment on this issue. The Eleventh Circuit “has consistently held that conclusory 

allegations without specific supporting facts have no probative value.” Evers v. Gen. 

24 Sierra disputes this fact in his unsworn declaration. [ECF No. 103-1, ¶ 10 (“I did 

not resolve performance issues and conflicts among service employees and other 

employees or contractors who worked at the restaurant, managers did.”)].

Case 1:20-cv-22603-JG Document 111 Entered on FLSD Docket 08/15/2022 Page 29 of 52
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Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (citing Gordon v. Terry, 684 F.2d 736, 744 

(11th Cir. 1982) and Broadway v. City of Montgomery, 530 F.2d 657, 660 (5th Cir. 1976)).

25

As further evidence of Sierra’s operational control over the restaurant, Plaintiffs 

cite the fact that Sierra filed an unsworn declaration26 [ECF No. 96-3], attesting to details 

concerning the restaurant’s operation, including tips and wages during Phase I and Phase 

II, the three precent credit card surcharge, Cesar Pacheco’s job functions, employees who 

were or were not managers, Plaintiffs’ paystubs, the amount of tips Plaintiffs’ received 

per month and the wages and tips paid to Plaintiffs. [ECF No. 108, pp. 5-6]. However, 

Plaintiffs ignore the other portions of Sierra’s declaration. For instance, Sierra states that 

the manner in which wages and tips were calculated during Phase I was established by 

the previous owner of the restaurant. [ECF No. 96-3, ¶ 6 (“When Grill Enterprises[, LLC]

first took over Los Parrilleros in 2015, it kept the same pay and tip pool system in place 

from the prior owners without any changes.”). And, that Sierra does not specify who at 

Grill Enterprises established the compensation system during Phase II. Id. at ¶ 10 (“In 

25 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), our appellate court held 

that all Fifth Circuit decisions issued before September 30, 1981 would become binding 

precedent in the Eleventh Circuit.

26 Title 28, United States Code, Section 1746, entitled “unsworn declarations under 

penalty of perjury,” provides that a person may submit the statutory substitute to an 

affidavit, without the use of a notary, by including designated language, such as “I 

declare under penalty of perjury under the laws of the United States of America that the 

foregoing is true and correct.” Thus, an unsworn declaration complying with the statute 

is competent evidence to the extent that an affidavit is competent evidence to support or 

undermine a summary judgment motion.

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January 2019, Grill Enterprises[, LLC] changed the payroll system so servers were paid 

their wages and tips by check, not in cash.”).

Plaintiffs also ignore the second unsworn declaration filed by Sierra in response to 

Plaintiffs’ statement of undisputed facts. [ECF No. 103-1]. In this second declaration, 

Sierra states that “the restaurant is operated on a day-to-day basis by its manager,” whom 

he “sometimes speaks to . . . as little as once per month.” Id. at ¶ 2. Sierra also attests that 

“the manager of the restaurant is in charge and in control of employees’ employment and 

the restaurant’s operations” and “makes the hiring and firing decisions and other 

decisions with respect to employees, including wages, hours, shifts, assignments, etc.” Id.

at ¶ 4. According to Sierra, with the exception of one meeting in 2015, “meetings with 

kitchen and wait-staff to coordinate and direct operations, including scheduling, were 

conducted by the manager, not [Sierra]” and “[a]ll scheduling was handled by the 

manager.” Id. at ¶ 5.

The fact that Sierra has personal knowledge as to many of the details of the operation 

of the restaurant does not necessarily mean Sierra was personally involved in the day-today operation of the restaurant or had some direct responsibility for the supervision of 

employees. The fact that Sierra filed unsworn declarations in the instant case does not 

mean he was Plaintiffs’ employer under the FLSA.

Plaintiffs also note that “Sierra was . . . produced as the person with [the] most 

knowledge regarding compliance with FLSA requirements.” [ECF No. 108, p. 6]. This 

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argument carries no legal weight. Notwithstanding the language Plaintiffs chose to 

include in their deposition notice [ECF No. 97-1], there is nothing in Rule 30(b)(6) which 

requires a corporate entity to produce a witness with the most knowledge on a particular 

topic or topics. See QBE Ins. Corp., 277 F.R.D. at 688-89, discussed supra. Moreover, the 

fact that Sierra was produced as the corporate representative during a Rule 30(b)(6) 

deposition does not establish that he exerted control over the day-to-day operations of 

that corporation.

Because Plaintiffs have failed to meet their burden at the summary judgment stage, 

the District Court should deny summary judgment on the issue of whether Sierra 

qualifies as an FLSA employer.

iv. Genuine Issues of Material Fact Preclude Summary Judgment for 

Plaintiffs on Their Minimum Wage Claims

Lastly, Plaintiffs maintain that they are entitled to summary judgment on their 

minimum wage claims (Counts I and II). According to Plaintiffs, throughout specific 

periods of their employment: (1) their only compensation came from gratuities provided 

by customers; (2) the restaurant took an unauthorized tip credit without paying Plaintiffs 

the reduced hourly wage; (3) the restaurant kept portions of Plaintiffs’ tips for its own 

use and benefit and (4) the restaurant required that Plaintiffs kick-back portions of their 

tips to the restaurant by requiring that Plaintiffs contribute to a purportedly invalid tip 

pool which redistributed the Plaintiffs’ tips to non-employee contractors, management 

employees, and the operating expenses of the restaurant. [ECF No. 100].

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Plaintiffs have asserted federal and state law minimum wage claims. At the outset, 

Defendants argue (in opposition to Plaintiffs’ motion and in their own summary 

judgment motion) that only Chavez brings an FMWA claim because Diaz did not join in 

Chavez’s FMWA claim. [ECF Nos. 104, p. 9; 95, pp. 2 n.1, 12]. The Undersigned will 

address this argument first.

1. Whether Diaz Joined in Chavez’s FMWA Claim 

 This argument centers around Diaz’s opt-in notice, which states, in its entirety as 

follows:

NOTICE OF CONSENT TO OPT-IN PURSUANT TO 29 U.S.C. § 216(b) 

1. I hereby consent, pursuant to 29 U.S.C. § 216(b), to become a party 

plaintiff in this lawsuit. 

2. By choosing to join this lawsuit, I understand that I designate the 

representative Plaintiff(s) as my agent to make decisions on my behalf 

concerning the litigation, including entering into settlement agreements. 

These decisions will be binding on me if I join this lawsuit.

3. By choosing to join this lawsuit, I understand that I will be bound by the 

judgment, whether it is favorable or unfavorable.

4. I hereby agree to be represented by Anthony Sanchez, P.A. Law Offices, 

counsel for the representative Plaintiff(s).

[ECF No. 39-1 (emphasis added)].

According to Defendants, “Diaz only opted-in to the FLSA minimum wage claim, 

not the FMWA claim” because “[a]s Diaz admits, [t]he FMWA does not include a separate 

procedural mechanism for joining a minimum wage claim under the FMWA” and the 

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opt-in notice “did nothing to add [Diaz] to the FMWA claim.” [ECF No. 104, p. 9 (citation 

and internal quotation marks omitted)]. According to Defendants,

[i]n the absence of a statutory mechanism under the FMWA to join an 

FMWA claim (as exists under the FLSA for FLSA claims), it was incumbent 

upon Diaz to join the FMWA claim by other means (e.g.[,] an amended 

pleading, motion for joinder, etc.), as allowed under the Federal Rules.

Id.

“Arguments, especially those that seek to foreclose claims at summary judgment, 

must be supported by citation to authority and appropriate analysis.” Watts v. Silverton 

Mortg. Specialists, Inc., 378 F. Supp. 3d 1164, 1177 n.3 (N.D. Ga. 2019). Here, Defendants 

fail to support their argument with any case law or other legal authority. See Romano v. 

John Hancock Life Ins. Co. (USA), No. 19-21147-CIV, 2022 WL 1447733, at *31 (S.D. Fla. May 

9, 2022) (“A litigant who fails to press a point by supporting it with pertinent authority, 

or by showing why it is sound despite a lack of supporting authority or in the face of 

contrary authority, forfeits the point. The court will not do his research for him.” (quoting 

Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 800 n.10 (10th Cir. 2001))).

Because Defendants have failed to properly support their argument, the Court 

should find, at least for summary judgment purposes, that Diaz joined in both the FLSA 

and FMWA claims (Counts I and II).

2. FLSA and FMWA Claims

The Undersigned will next address Plaintiffs’ minimum wage claims. As noted 

above, Plaintiffs divide their employment period into two phases: Phase I and Phase II.

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Plaintiffs assert that the manner in which they were compensated during Phase I 

violated the FLSA and the FMWA because Plaintiffs were compensated only from the 

tips they received and not from the reduced hourly wages Defendants were required to 

pay. [ECF No. 100, p. 15]. As evidence of this alleged improper pay structure, Plaintiffs 

cite to their Phase I paystubs which totaled $0.00 or a negligible amount. Id. at 12.

Plaintiffs further contend that during Phase I, “Defendants retained the Plaintiffs 

tips in an amount greater than . . . what they used to deposit on account of statutory [tax] 

withholding requirements.” Id. at 15. 

According to Plaintiffs, during Phase I and Phase II, they were required to 

participate in an unlawful tip pool which included persons who were not employees of 

the restaurant and management employees. Id. Lastly, Plaintiffs assert that during Phase 

II, they were improperly required to pay three percent for tips paid by credit card, which 

was more than the amount Defendants were charged by credit card vendors. Id. at 16.

Defendants, of course, maintain that “the tip pool Plaintiffs participated in 

complied with the FLSA and all applicable regulations.” [ECF No. 104, p. 16].

For the reasons discussed below, genuine issues of material fact preclude 

summary judgment for Plaintiffs in either phase.

a. Phase I: Defendants’ Alleged Failure to Pay a 

Reduced Hourly Rate and Alleged Retention of Tips 

in Excess of Tax Withholdings

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“The FLSA requires that employers pay employees a minimum hourly wage.” Ash 

v. Sambodromo, LLC, 676 F. Supp. 2d 1360, 1366 (S.D. Fla. 2009) (citing 29 U.S.C. § 201, et 

seq.). “Employers of tipped employees may consider tips as part of the tipped 

employees[’] wages, but employers must pay a direct reduced minimum wage if they 

claim a ‘tip credit.’” Id. (quoting 29 U.S.C. § 203(m) (footnotes omitted)).

The burden of proof is on the employer to “establish[] that it is entitled to claim 

the ‘tip credit’” and “[u]nless the employer satisfies its burden of showing the 

applicability of the tip credit, the employee is ‘entitled to the full minimum wage for 

every hour worked.’” Ash, 676 F. Supp. 2d at 1369 (quoting Barcellona v. Tiffany English 

Pub, Inc., 597 F.2d 464, 467 (5th Cir. 1979)). An employer must meet three requirements 

“to satisfy the ‘tip credit’ in Section 203(m): (1) the tip credit must be claimed for qualified 

tipped employees; (2) the employees must receive proper notice of Section 203(m) and (3) 

all tips received by the employees must be retained by them.” Id. (citing 29 U.S.C. § 

203(m)).

Plaintiffs state that, during Phase I, Defendants “purported to compensate 

Plaintiffs on account of their hourly wages calculated by multiplying the number of hours 

worked by the reduced hourly rate applicable to tipped employees” when in fact 

“Plaintiffs were not actually paid [any hourly wage] for the hours worked.” [ECF No. 

100, p. 15 (internal quotation marks omitted)]. Plaintiffs note that almost every single one 

of the paychecks during Phase I reveals a net pay of ‘$0.00.’” Id. Plaintiffs state that during 

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this period they received only tips (and less than 100% of their tips) as compensation for 

their work. Id.

Plaintiffs also contend that, during Phase I, the amounts withheld by Defendants 

from their tips, purportedly to pay tax withholdings, were different from the amounts 

Defendants actually submitted to the government. According to Plaintiffs, Defendants 

“retain[ed] a flat percentage of the tips on account of tax withholding obligations.” Id. at 

16. However, these amounts were in excess of the amounts paid for tax withholdings.

Id.

27

For instance,

during Phase I of . . . Chavez’s [e]mployment – during which [Defendants] 

converted his tips to cash and then returned to Plaintiffs only a flat 80% 

(sometime[s] 90%) of those tips while retaining a flat 20% (sometime[s]

10%) – [Defendants] retained more of the Plaintiff Chavez’s gross tips, than 

[Defendants] deposited to government authorities on account of statutory 

deductions, according to their own tax reporting.

Id. Plaintiffs thus argue Defendants are not entitled to apply a tip credit.

27 Defendants contend that “Plaintiff Chavez, but not Plaintiff Diaz, claims that 

Defendants violated the tip credit provisions of the FLSA by deducting an arbitrary 20% 

from his nightly cash tips for taxes but paid less than that amount to the federal 

government.” [ECF No. 104, p. 13]. Although the example cited in Plaintiffs’ motion 

relates to Chavez, Diaz made a similar allegation in his supplemental affidavit: See [ECF 

No. 99, ¶ 36c (“During Phase I, the gross amounts retained by the Defendants was not 

the same as the amounts they deposited on account of statutory tax withholdings.”)]. 

Thus, both Plaintiffs are claiming Defendants withheld amounts for tax purposes which 

were different than the amounts Defendants actually submitted to the government.

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Defendants respond that “[t]he paystubs all clearly show the reduced tip credit 

minimum wage paid to Chavez and Diaz, the tip credit taken by Grill Enterprise[s, LLC], 

and the tips received by Chavez and Diaz.” [ECF No. 104, p 10]. 

According to Defendants,

[t]he only reason that the pay stubs reflect[] [a] pay of net zero dollars 

($0.00) is because, as is common with tipped employees, the wages they 

earned went to pay taxes on (1) the wages paid to them by Grill Enterprises[, 

LLC] and (2) the cash tips they earned and took home with them in cash 

each night, as required. Statutory withholdings, as shown on Plaintiffs’ 

paystubs, were withheld from Plaintiff’s [sic] wages to account for taxes 

owed by Plaintiff [sic] on (1) their wages paid by Grill Enterprises[, LLC]

and (2) cash tips retained by Plaintiffs.

Id. (emphasis added; citation to the record omitted).

However, Plaintiffs maintain that they were not actually paid a reduced hourly 

wage and that the 10 to 20 percent withheld by Defendants for alleged tax purposes came 

from Plaintiffs’ tips. [ECF Nos. 98, ¶ 37b (“During Phase I, . . . Defendants would retain 

or withhold 20% of my tips, and sometimes only 10% of the [t]ips; . . . . Defendants 

represented to me that the reason they retained 20% (and sometimes only 10%) of my 

“[t]otal [t]ips” earned was so that they could comply with the statutory withholdings 

requirement[] pertaining to income taxes, Social Security, and Medicare tax.”) 

(emphasis added)); 99, ¶ 36b (same)].

Defendants deny retaining any portion of Plaintiffs’ tipsfor tax withholdings. [ECF 

No. 104, p. 14 (“Plaintiffs were . . . well-aware [that] an additional 20% was not deducted 

for payroll taxes. . . . The actual taxes withheld and paid to the federal government were 

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taken from Plaintiffs’ wages, not their tips, and are set forth on Plaintiffs’ respective 

paystubs.” (emphasis added))]. In his unsworn declaration, Sierra attests that:

Grill Enterprises[, LLC] did not retain any portion of Plaintiffs’ tips on 

account of statutory tax withholdings, or other purposes. Rather, statutory 

withholdings, as shown on Plaintiffs’ paystubs, were withheld from 

Plaintiffs’ wages to account for taxes owed by Plaintiffs on their wages by 

Grill Enterprises[, LLC] and cash tips retained by Plaintiffs.

[ECF No. 103-1, ¶ 11 (emphasis added)].

The disposition of this issue turns on credibility determinations and contested 

facts. If the trier of fact were to believe Plaintiffs’ version of the facts, then Defendants did 

not pay any reduced hourly wage to Plaintiffs, withheld between 10 to 20 percent of 

Plaintiffs’ tips, and remitted only some of this amount to the government for taxes. If, on 

the other hand, the trier of fact were to believe Defendants, then Defendants did not retain 

any portion of Plaintiffs’ tips and instead paid tax withholdings (for both wages and tips) 

from Plaintiffs’ reduced hourly rate. In any event, these disputed factual issues are for 

the jury to determine, not the Court.

b. Phase I and II: Participation in Tip Pool by Alleged 

Non-Employees and Management Employees

Plaintiffs also contend that some of the individuals who participated in the tip pool 

were either non-employees or management employees. Plaintiffs state that “they were 

required to share their tips with both non-employees who worked at the restaurant offthe-books or as supposed ‘independent contractors’” and ”also had to ‘tip out’ at least 

one management employee.” [ECF No. 100, p. 16].

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“The FLSA does not prohibit employers from requiring tipped employees to share 

tips with other tipped employees through a tip pool.” Ash, 676 F. Supp. 2d at 1369 (citing 

29 U.S.C. § 203(m) and Kilgore v. Outback Steakhouse of Fla., Inc., 160 F.3d 294 (6th 

Cir.1998)). However, “[o]nly tipped employees can participate in a valid tip pool.” Id.

The only alleged tip pool participating non-employee who Plaintiffs identify by 

name is Cesar Pacheco. [ECF No. 108, p. 9]. Plaintiffs argue that Pacheco was not an 

employee of Defendants because he does not appear in pay or time-keeping records 

produced by Defendants or in Grill Enterprises, LLC’s Employer’s Quarterly Report filed 

with the Florida Department of Revenue. Id. at 9-10.

Defendants respond that “no non-employees . . . participated in the tip pool.” [ECF 

No. 104, p. 16]. They then proceed to engage in an analysis of who is an “employee” and 

who is a “contractor” under the FLSA. Id. at 16-18 (discussing the economic realities test 

in Freund v. Hi–Tech Satellite, Inc., 185 F. App’x 782, 783 (11th Cir. 2006)). Applying the 

factors of the economic realities test, Defendants conclude that Pacheco -- a dishwasher 

and occasional busser -- was an employee, as defined by the FLSA. Id. at 17.

In their motion, Plaintiffs argued, without citation to authority, that Defendants’ 

tip pool was invalid “because [Plaintiffs] were required to share their tips with both nonemployees who worked at the restaurant off-the-books or as supposed ‘independent 

contractors.’” [ECF No. 100, p. 16]. In their reply, Plaintiffs argued that Pacheco was an 

undocumented worker and therefore could not lawfully participate in the tip pool. [ECF 

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No. 108, p. 10 (“There is no authority in support of the proposition that Defendants may 

use their lawful employees’ tips to subsidize payment to undocumented workers of the 

Defendants.”)].

Setting aside the propriety of waiting until the reply brief to cite any case law on 

this issue, none of the cases cited by Plaintiffs address the participation of an 

undocumented worker in a tip pool. Moreover, Plaintiffs have not cited to any record 

evidence establishing Pacheco’s undocumented status. Instead, Plaintiffs rely on the fact 

that Pacheco’s name does not appear in certain records (he was paid under the name VIP 

Services) and on in limine arguments made by Defendants’ counsel and a proposed jury 

instruction. Id. at 10 (citing [ECF Nos. 82; 84]).

The Undersigned is not concluding that the participation of an undocumented 

worker in a tip pool can (or cannot) invalidate that tip pool. The Undersigned is merely 

stating that, based on this record -- where Plaintiffs have not established Pacheco’s status 

as an undocumented worker and instead seek to rely on arguments made by Defendants’ 

counsel in other non-summary judgment filings -- this issue should not be resolved at the 

summary judgment stage.28

28 During his deposition, Chavez testified that he had no knowledge concerning the 

citizenship status of bussers or bartenders:

Q. Were any of the bussers or bartenders that you worked with not 

American citizens?

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Plaintiffs also argue that the tip pool was invalid because at least one management 

employee participated in the tip pool. The only alleged management employee identified 

by Plaintiffs is Mariana Pinto. Plaintiffs cite Defendants’ interrogatory responses, where 

they identified Pinto as an assistant manager. [ECF No. 108, p. 11 (citing ECF No. 98-4, p. 

5)].

Defendants argue that Pinto was not an assistant manager during Plaintiffs’ 

employment. [ECF No. 104, p. 20 (“[a]fter Plaintiffs left Grill Enterprises, in September 

2020, Pinto was hired back as an assistant to the manager.”)]. According to Defendants,

“Pinto was a hostess/ bartender who earned $9-$11 per hour.” Id. She

did not direct the work of other employees” and “had no authority to: (1) 

hire or fire employees; (2) interview employees; (3) discipline employees; 

(4) recommend or suggest that employees be hired, fired, disciplined, 

promoted, advanced, etc.; (5) evaluate the performance of employees; or (6) 

decide employee’s wages or raises, etc.

Id. at 19-20.

During his deposition, Chavez described Mariana Pinto’s job duties as follows:

Q. What was Mariana’s job at the restaurant?

A. She acted both as a manager and as a hostess. And sometimes as a 

bartender. Whatever was needed at the restaurant.

A. I don’t know the status of every person there.

Q. Do you know the status of any of them?

A. No.

[ECF No. 96-2, p. 75:15-19].

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[ECF No. 96-2, p. 114:24-115:2].

Under certain circumstances, a manager may participate in a tip pool:

A manager may participate in a tip pool if he or she has “more than de 

minimis service interaction with customers.” Wajcman v. Inv. Corp. of Palm 

Beach, No. 07-80912-CIV, 2008 WL 783741, at *3 (S.D. Fla. Mar. 20, 2008) 

(Hurley, J.). Other courts in this District have held that only employees who 

“have no customer contact . . . fall outside the definition of tipped 

employees.” Pellon v. Bus. Representation Int’l, Inc., 528 F. Supp. 2d 1306, 1315 

(S.D. Fla. 2007) (Moreno, J.), aff’d, 291 F. App’x 310 (11th Cir. 2008). The 

notion of a manager wearing two hats in a restaurant is not unprecedented. 

. . . Where . . . a manager has a mix of supervisory responsibilities and more 

than a de minimis customer-facing service role, such a manager may 

participate in a tip pool or, in this case, a service charge.

Nelson v. MLB Hotel Manager, LLC, No. 19-23730-CIV, 2020 WL 7481410, at *6 (S.D. Fla. 

Dec. 18, 2020), aff'd, No. 21-10181, 2022 WL 2733720 (11th Cir. July 13, 2022).

Here, Pinto’s role at the restaurant during Plaintiffs’ employment is disputed. 

Therefore, Plaintiffs are not entitled to summary judgment in their favor based on Pinto’s 

participation in the tip pool.

c. Phase II: Three Percent Credit Card Surcharge

Lastly, Plaintiffs claim that, during Phase II, Defendants improperly charged 

Plaintiffs three percent for tips paid by credit cards. [ECF No. 100, p. 16].

Defendants respond that “Plaintiffs have no personal knowledge of the cost to 

Defendants of credit card charges and their claim that the actual amount was less than 

3% is sheer speculation.” [ECF No. 104, p. 20]. According to Defendants, the actual cost 

for credit card transactions was 3.4%. Id. (“[T]here were other costs associated with card 

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transactions including discount fees, transaction fees, chargebacks/ reversals, 

adjustments numerous other external and internal charges. Altogether, the card sales 

(including on tips received by card) resulted in an average cost to Grill Enterprises[, LLC] 

of approximately 3.4%.”).

The source of this 3.4% number is the unsworn declaration of Yeison Gonzalez. 

[ECF No. 103-3]. It is unclear from his declaration what Gonzalez’s role is at Grill 

Enterprises, LLC. Moreover, Defendants do not attach any merchant agreements or 

mathematical calculations supporting this 3.4% figure. In Vega v. Ya Guan USA LLC, for 

instance, the defendants submitted “a sworn declaration, merchant statements, and a 

point-of-sale chart to support its position it did not become enriched by withholding a 

percentage of Plaintiff's tips to pay credit card fees” and, even in that case, the Court 

determined the record did not support a summary judgment ruling. No. 19-24902-CIV, 

2020 WL 13413699, at *3-4 (S.D. Fla. Sept. 23, 2020).

“[A]n employer may subtract a sum from an employee’s charged gratuity which 

reasonably compensates it for its outlays sustained in clearing that tip, without 

surrendering its section 203(m) partial set-off against minimum wages.” Vega, 2020 WL 

13413699, at *3 (citing Myers v. Copper Cellar Corp., 192 F.3d 546, 553 (6th Cir. 1999)). 

Plaintiffs are not entitled to summary judgment on this issue because they cite to no 

record evidence that the percentage charged by Defendants was unreasonable. Id. at *4 

(finding summary judgment was not appropriate “where both parties present[ed]

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competing characterizations of the evidence and advocate[d] for different definable time 

periods” and “Court [could not] conclude, as a matter of law, that [the restaurant’s credit 

card] deductions [were] unreasonable and improper under the FLSA”).

In sum, Plaintiffs have shown as a matter of law that enterprise coverage applies 

in this case and that Grill Enterprises, LLC was Plaintiffs’ FLSA employer. Plaintiffs are 

not, however, entitled to summary judgment on the issue of whether Sierra is an FLSA 

employer or on their minimum wage claims. Plaintiffs have failed to show, through 

competent evidence, that Sierra exercised operational control over the restaurant. 

Additionally, genuine issues of material fact remain concerning Plaintiffs’ minimum 

wage claims. Accordingly, Plaintiffs’ summary judgment motion should be granted in 

part and denied in part.

B. Defendants’ Renewed Summary Judgment Motion

As noted above, Defendants have moved for summary judgment in their favor on 

the following four issues: (1) Plaintiffs have not provided sufficient proof that Grill 

Enterprises, LLC meets the first prong of enterprise coverage; (2) “the record is absent 

any facts or evidence to support Plaintiffs’ allegations that Defendants violated the 

minimum wage and/or tip credit provisions of the FLSA and/or that Defendants were not 

entitled [to] take a tip credit against the federal minimum wage,” (3) “[a]s to the FMWA 

minimum wage claims (Count II) . . . these claims must be dismissed for the same reasons 

the FLSA minimum wage claims should be dismissed;” and (4) Chavez’s FLSA retaliation 

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claim (Count III) fails as a matter of law because “the record is absent [of] any facts or 

evidence to support Chavez’s allegations that Defendants retaliated against Chavez, in 

response to statutory [sic] protected complaints, in violation of the FLSA.” [ECF No. 95, 

p. 2].

The District Court should grant summary judgment to Defendants on Chavez’s 

retaliation claim (Count III) and deny Defendants’ motion in all other respects.

i. Enterprise Coverage

For the reasons discussed above, the Court should find that Plaintiffs have met 

their burden of establishing enterprise coverage as a matter of law. Therefore, Defendants 

are not entitled to summary judgment in their favor on this issue.

ii. Minimum Wage Claims under the FLSA and FWMA

For the reasons discussed above, the Court should find that genuine issues of 

material fact preclude summary judgment for Defendants on Plaintiffs’ minimum wage 

clams.

iii. Chavez’s Retaliation Claim

Defendants also seek summary judgment on Chavez’s retaliation claim. FLSA 

retaliation claims are subject to the following framework:

A prima facie case of FLSA retaliation requires a demonstration by the 

plaintiff of the following: “(1) she engaged in activity protected under [the] 

act; (2) she subsequently suffered adverse action by the employer; and (3) a 

causal connection existed between the employee’s activity and the adverse 

action.” Richmond v. ONEOK, Inc., 120 F.3d 205, 208–09 (10th Cir. 1997). If 

the employer asserts a legitimate reason for the adverse action, the plaintiff 

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may attempt to show pretext. See id. In demonstrating causation, the 

plaintiff must prove that the adverse action would not have been taken “but 

for” the assertion of FLSA rights. See Reich v. Davis, 50 F.3d 962, 965–66 (11th 

Cir. 1995).

Wolf v. Coca-Cola Co., 200 F.3d 1337, 1342–43 (11th Cir. 2000).

There are two alleged protected activities in this case: (1) “[d]uring periods of his 

[e]mployment when he was paid no hourly wages at all, [Chavez] complained to his 

employer about the fact that he wasn’t paid even the reduced minimum wage 

conditionally applicable for tipped employees” and (2) “[t]hroughout his employment, 

and as recently as one week prior to his termination, [Chavez] complained to his 

employer about the fact that he was required to bring his own cash to work in order to 

make change for customers of the restaurant.” [ECF No. 105, p. 16].

Although the case law makes clear that an “[a]dverse employment action does not 

refer only to ultimate employment decisions, such as the decision to discharge an 

employee,” Shannon v. Bellsouth Telecommunications, Inc., 292 F.3d 712, 716 (11th Cir. 

2002),29 the only adverse action specifically identified by Plaintiffs is Chavez’s 

termination. See [ECF No. 105, p. 18 (“[T]he last time [Chavez] complained to the 

employer occurred just one week prior to his termination.”)].

29 The employee in Shannon brought a retaliation claim under Title VII. “[C]ourts 

have often relied on Title VII retaliation cases when assessing whether conduct 

constitutes material adverse action under the FLSA.” Smith v. Haynes & Haynes P.C., 940 

F.3d 635, 649 n.6 (11th Cir. 2019).

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Defendants are entitled to summary judgment on Chavez’s first alleged protected 

activity -- complaints about not being paid a reduced minimum wage -- because Chavez 

cannot meet the causation prong.

Chavez must establish a causal connection between his protected conduct and the

adverse action (his termination). “Under Eleventh Circuit precedent, a plaintiff satisfies 

the causation element by providing sufficient evidence that the decision-maker had 

knowledge of the protected activity and that there was a close temporal proximity 

between this awareness and the adverse action.” Vandesande v. Miami-Dade Cnty., 431 F. 

Supp. 2d 1245, 1256 (S.D. Fla. 2006) (citing Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 

2004)); Raspanti v. Four Amigos Travel, Inc., 266 F. App’x 820, 823 (11th Cir. 2008) (“A

plaintiff can satisfy [the causation element] if she can prove a ‘close temporal proximity’ 

between the time her employer learned about her protected activity and her discharge.”).

Chavez’s deposition testimony shows that his complaints concerning the amounts 

reflected (or not reflected) on his paychecks were last made at the end of 2018:

Q. Now, you said at some point during your employment ending at the 

beginning of 2019 that the employer would issue you paychecks for zero 

value, correct?

A. That’s correct.

Q. And that changed at the beginning of 2019?

A. That’s correct.

Q. Prior to the time that it changed in January of 2019, when was the last 

time that you objected to the fact or in any way complained or voiced a 

concern regarding the fact that your paychecks delivered zero dollars on 

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payday?

A. Well, that would have probably been in the last quarter of 2018 or 

something like that. Between mid[-]2018 and the end of the year 2018, 

maybe in the last quarter.

Q. And so once they started issuing checks that included a net payment 

to you, you stopped complaining about receiving zero money on account 

of the hours you worked, correct?

A. You mean zero dollars net. Correct.

[ECF No. 96-2, p. 118:25-119:1-20 (emphasis added)].

Chavez was terminated approximately one year and five months after he last 

complained about the amounts reflected (or not reflected) on his paychecks. An 

approximately one-year and five months gap between the alleged protected activity and 

the alleged adverse action is too remote in time to support an FLSA retaliation claim. See 

Raspanti, 266 F. App’x at 823 (termination that took place seven months and three weeks 

after the defendant learned of the plaintiff’s participation in an FLSA lawsuit was “too 

remote . . . to establish causation based on temporal proximity”). Plaintiffs have not 

proffered other evidence tending to show causation. See Higdon v. Jackson, 393 F.3d 1211, 

1220 (11th Cir. 2004) (“If there is a substantial delay between the protected expression 

and the adverse action in the absence of other evidence tending to show causation, the 

complaint of retaliation fails as a matter of law.”).

Defendants are also entitled to summary judgment on Chavez’s retaliation claim 

based on complaints about having to keep cash in order to make change for customers.

“Informal complaints to an employer regarding wage practices or any conduct that 

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implicates the FLSA qualify as protected activity.” Wigley v. W. Fla. Lighting, Inc., No. 

8:04CV1524T27TGW, 2005 WL 3312319, at *4 (M.D. Fla. Dec. 7, 2005). However, “not 

every informal complaint made by an employee automatically qualifies as a protected 

expression that shields the employee from subsequent retaliation.” Robertson v. Interactive 

Coll. of Tech./Interactive Learning Sys., Inc., No. 1:14-CV-2728-MHC-JSA, 2017 WL 5197874, 

at *19 (N.D. Ga. Jan. 13, 2017), report and recommendation adopted, No. 1:14-CV-2728-

MHC, 2017 WL 5247942 (N.D. Ga. Feb. 15, 2017), aff'd, 743 F. App'x 269 (11th Cir. 2018) 

(Title VII); Franklin v. City of Homewood, No. 2:07-CV-006-TMP, 2009 WL 10703685, at *19 

(N.D. Ala. Aug. 19, 2009) (“Not every expression of displeasure about wages, however, 

constitutes a complaint protected under the [FLSA].”).

Plaintiffs argue that Chavez’s complaints about having to make change for 

customers was a protected expression under the FLSA because “whenever the Plaintiff is 

required to resort to his own resources to provide value for the benefit of the [restaurant], 

this necessarily ‘cuts into the minimum . . . wages required to be paid’ under the act, this 

is necessarily a complaint pertaining to the failure to pay a minimum wage.” [ECF No. 

105, p. 18 (quoting 29 CFR § 531.35)].

Chavez’s complaints about having to make change for customers were not 

sufficiently specific to put Defendants on notice that Chavez was alleging that Defendants 

had violated the FLSA in failing to properly pay minimum wages.

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Chavez’s complaints were not about the amounts or manner in which he was 

being paid but were, instead, complaints about Defendants requiring Chavez to keep 

cash on hand. Plaintiffs have not shown that the nature of this complaint concerns a right 

protected by the FLSA. Accordingly, the Court should grant summary judgment in 

Defendants’ favor on Chavez’s retaliation count. See Bennett v. Sch. Bd. of Madison Cnty., 

Fla., No. 4:06CV155-RH/WCS, 2007 WL 9735151, at *4 (N.D. Fla. May 29, 2007), aff'd sub 

nom. Bennett v. Sch. Bd. of Madison Cnty., 265 F. App'x 876 (11th Cir. 2008) (granting 

summary judgment for employer where “[a] reasonable employer would not have 

understood [the plaintiff]’s complaint concerning payment for having driven the 

December 2004 field trip to be an assertion of rights under the FLSA. [The plaintiff]’s 

complaint thus was not an assertion of rights under the statute, and the adverse action 

taken against him, even if based on the complaint, was not a violation of the FLSA antiretaliation provision.”).

In sum, the Court should grant summary judgment in Defendants’ favor on 

Chavez’s retaliation claim (Count III) and deny Defendants’ renewed summary 

judgment motion on all other counts.

V. Conclusion

Plaintiffs are entitled to summary judgment in their favor on the issue of enterprise 

coverage and on Grill Enterprises, LLC’s status as Plaintiffs’ FLSA employer. Defendants 

are entitled to summary judgment on Chavez’s retaliation count. Genuine issues of 

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material fact preclude summary judgment on the remaining issues raised in the parties’ 

respective renewed motions. The District Court should therefore grant in part and deny 

in part the parties’ renewed summary judgment motions. 

VI. Objections

The parties will have fourteen (14) days from the date of being served with a copy 

of this Report and Recommendations within which to file written objections, if any, with 

United States District Judge Marcia G. Cooke. Each party may file a response to the other 

party’s objection within fourteen (14) days of the objection. Failure to file objections 

timely shall bar the parties from a de novo determination by the District Judge of an issue 

covered in the Report and shall bar the parties from attacking on appeal unobjected-to 

factual and legal conclusions contained in this Report except upon grounds of plain error 

if necessary in the interest of justice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 

149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1 (2016). 

RESPECTFULLY RECOMMENDED, in Chambers, in Miami, Florida, on August 

15, 2022. 

Copies furnished to:

The Honorable Marcia G. Cooke

All Counsel of Record

Case 1:20-cv-22603-JG Document 111 Entered on FLSD Docket 08/15/2022 Page 52 of 52