THE BENDAU LAW FIRM PLLC

P.O. Box 97066 

Phoenix, AZ 85060

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Clifford P. Bendau II (030204)

Christopher J. Bendau (032981)

THE BENDAU LAW FIRM PLLC

P.O. Box 97066

Phoenix, Arizona 85060

Telephone: (480) 382-5176

Facsimile: (602) 956-1409

Email: cliffordbendau@bendaulaw.com

chris@bendaulaw.com

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Brent Hanke,

 Plaintiff, 

vs.

Vino Pinot Dining, LLC, d/b/a Salut 

Kitchen Bar, Anastasios Tirkas, and David 

Freedman,

 Defendants,

No. 2:15-CV-01873-SMM

PLAINTIFF’S MOTION FOR 

SUMMARY JUDGMENT

Plaintiff Brent Hanke (“Plaintiff”) requests that the Court enter summary judgment 

in his favor and against Defendants1on Counts III, IV, and V (Fair Labor Standards Act

(the “FLSA”) claims) and Count VI (Arizona Wage Act (the “Act”) claims) of the

Complaint (Dkt. 1) (the “Complaint”). The undisputed facts show that Defendants were 

Plaintiffs’ “employers” as defined by the FLSA, that Defendants are an enterprise 

engaged in commerce with annual gross sales of at least $500,000, and that Defendants 

failed to pay Plaintiff minimum and overtime wages during his employment. With no 

dispute of fact as to these issues, no reasonable juror could find in Defendants’ favor.

Defendants did not keep records sufficient to evidence the dates and times that Plaintiff

attended required unpaid meetings, training, “cleaning parties,” and other events.

2

Therefore, Plaintiff’s estimates of his unpaid wages for these times are the only evidence 

 

1 “Defendants” refers to Vino Pinot Dining, LLC (“Vino Pinot”), Anastasios Tirkas 

(“Tirkas”), and David Freedman (“Freedman”).

2 In this Motion, unless otherwise specified, “unpaid meetings” refers to required 

unpaid staff meetings, manager meetings, training, “cleaning parties,” and other events.

Case 2:15-cv-01873-SMM Document 42 Filed 03/16/17 Page 1 of 19
2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

THE BENDAU LAW FIRM PLLC

P.O. Box 97066 

Phoenix, AZ 85060

for the Court or jury to consider. 

This is a straightforward case where Defendants employed Plaintiff for years but 

did not pay him minimum and overtime wages he earned in violation of the FLSA and 

the Act. Typically, the parties in such a case would at least have an argument over the 

amount of wages owed after liability is established. But here, there is no dispute. The 

evidence Plaintiff relies on in support of his request for summary judgment is primarily: 

(1) Defendants’ Answers to the Complaint (Dkts. 7 and 9)

3

; (2) the testimony of Vino

Pinot; (3) Defendants’ written discovery responses; and (4) Plaintiff’s damages charts 

showing his unpaid wages. The following Memorandum of Points and Authorities and 

Plaintiff’s Separate Statement of Facts4 filed concurrently supports this Motion. 

Memorandum of Points and Authorities

I. Standard of Review.

Summary judgment should be granted where 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(c). “Rule 56(c) mandates 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 

(1986). The Court should grant summary judgment “if the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the affidavits, if any, 

show that there is no genuine issue as to any material fact and that the moving party is 

entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 247 (1986).

 3 Defendants Vino Pinot and Tirkas filed their Answer to the Complaint on 

November 10, 2015 (Dkt. 7). Defendant Freedman filed his Answer to the Complaint on 

November 30, 2015 (Dkt. 9). In his Answer, Defendant Freedman “join(ed) the Answer 

to Complaint filed by Defendants Anastasios Tirkas and Vino Pinot Dining, LLC, d/b/a 

Salut Kitchen Bar as if his own.” (Dkt. 9). Therefore, the terms “Answer” and “Dkt. 7” 

refer to both Answers filed by Defendants Vino Pinot and Tirkas, and Freedman, 

respectively. 

4 In this Motion, Plaintiff’s Separate Statement of Facts is referred to as the “SOF.”

Case 2:15-cv-01873-SMM Document 42 Filed 03/16/17 Page 2 of 19
3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

THE BENDAU LAW FIRM PLLC

P.O. Box 97066 

Phoenix, AZ 85060

“Furthermore, the party opposing summary judgment ‘may not rest upon the mere 

allegations or denials of [the party’s] pleading, but...must set forth specific facts showing 

that there is a genuine issue for trial.’” Juarez v. CC Servs., Inc., 434 F. Supp. 2d 755, 

758 (D. Ariz. 2006) (citation omitted). “There is no issue for trial unless there is 

sufficient evidence favoring the non-moving party; if the evidence is merely colorable, or 

is not significantly probative, summary judgment may be granted.” Anderson, at 247. 

There must be sufficient evidence favoring the non-moving party for a jury to return a 

verdict for that party in order to avoid summary judgment. Id. at 249. Here, no 

reasonable juror could find for Defendants on any of Plaintiff’s claims at issue in this 

Motion for Summary Judgment because Defendants cannot present any evidence to 

create a dispute of fact necessitating trial.

II. Relevant Facts. 

Defendant Vino Pinot LLC (“Vino Pinot” or “Salut”) does business as Salut 

Kitchen Bar, a restaurant located in Tempe, Arizona. SOF, ¶ 1. Defendants Anastasios 

Tirkas and David Freedman (collectively, including Vino Pinot, “Defendants”), are, and 

were for the duration of Plaintiff’s employment at Salut, the managing members and 

owners of Vino Pinot. Id., ¶ 2. Plaintiff, Brent Hanke (“Plaintiff”), worked for 

Defendants as a bartender, bar-back, and server from approximately March 1, 2013 to 

approximately March 31, 2015. Id., ¶ 3. 

Throughout Plaintiff’s time working at Salut, Defendants had the authority to hire 

and fire Plaintiff, supervised and controlled Plaintiff’s work schedules or the conditions 

of Plaintiff’s employment, determined Plaintiff’s rate and method of payment, and 

maintained employment records in connection with Plaintiff’s employment. Id., ¶¶ 4-15.

Throughout Plaintiff’s employment with Defendants, Plaintiff was paid at a tip 

credit rate. Id., ¶¶ 16-17. With the exception of the workweeks of the paychecks dated 

April 15 and April 29, 2013, Defendants never paid any wage whatsoever to Plaintiff for 

any time he spent working in excess of 40 hours, and on occasion deducted time from his 

Case 2:15-cv-01873-SMM Document 42 Filed 03/16/17 Page 3 of 19
4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

THE BENDAU LAW FIRM PLLC

P.O. Box 97066 

Phoenix, AZ 85060

non-overtime workweeks. Id., ¶¶ 19-22. Instead, for any workweek during which 

Plaintiff worked more than 40 hours, Defendants deleted all of that time such that 

Plaintiff’s pay records would reflect that he worked no more than 40 hours that week. Id.

Defendants required Plaintiff to attend mandatory meetings and other events for 

which Defendants did not compensate Plaintiff whatsoever. Id., ¶¶ 23-28. Such events 

included periodic unpaid staff meetings; weekly unpaid manager meetings; and monthly 

unpaid “cleaning parties,” which were meetings that Defendants required the entire Salut 

staff to attend for the purpose of cleaning the entire restaurant. Id. Defendants did not 

generally record the dates or times of these unpaid meetings, but they did schedule them 

via posts contained in Defendants’ “Vino Pinot Employees” Facebook group. Id.

Defendants also required Plaintiff to reimburse them for broken dishes and cash 

register shortages. Id., ¶¶ 29-32. Per Defendants’ policy and practices, any time that a 

dish broke under Plaintiff’s watch, Defendants would deduct certain hours from 

Plaintiff’s paychecks that Defendants, in their sole discretion, determined were 

commensurate with the value of the broken dish. Id. In the event of a register shortage, 

Defendants would require Plaintiff to reimburse the shortage from his tips. Id.

Neither Defendants nor any of their agents or representatives ever informed 

Plaintiff of the tip credit provisions of 29 U.S.C. § 203(m) and 29 C.F.R. § 531.59. Id., ¶ 

37. This means that Defendants never informed Plaintiff that tips Plaintiffs earned would 

be credited toward their minimum wage obligations. Id., ¶¶ 38-42. Aside from a single 

2014 Arizona wage poster, Defendants have no written evidence in their possession to 

support that Salut informed Plaintiffs of their intent to impose a tip credit on Plaintiffs’ 

wages in compliance with 29 C.F.R. 531.59, id., nor does Salut have knowledge of 

anyone with personal knowledge to support such a contention. Id., ¶ 40. Rather,

Defendants rely exclusively on their bald assertions otherwise. Id., ¶¶ 38-42.

Defendants, by virtue of the time clock manipulation and unpaid meetings 

Case 2:15-cv-01873-SMM Document 42 Filed 03/16/17 Page 4 of 19
5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

THE BENDAU LAW FIRM PLLC

P.O. Box 97066 

Phoenix, AZ 85060

discussed above, paid no overtime whatsoever to Plaintiff for any time he spent working 

in excess of 40 hours in a given workweek. Id., ¶ 22.

Finally, Defendants do not have records of dates or times that Plaintiff spent 

attending unpaid meetings. Id., ¶¶ 43-44. Defendants did not use any method for 

recording such dates or times. Id. In fact, Plaintiff was instead prohibited from clocking 

in at all during these times. Id., ¶ 24. Plaintiff, to the best of his memory and experience, 

reconstructed the dates and hours he spent attending unpaid meetings, as shown in the 

charts provided with his Affidavit. Id., ¶ 45.

III. Argument.

A. Vino Pinot, Tirkas, and Freedman are liable to Plaintiff under the 

FLSA.

All Defendants are liable to Plaintiff for their FLSA violations. To prove FLSA 

minimum wage liability, a plaintiff must show that: (1) she was employed by the

defendant during the relevant time period, (2) in the plaintiff’s work for the defendant, 

she was employed by an enterprise engaged in commerce or the production of goods for 

commerce with annual gross sales of at least $500,000; and (3) the defendant did not pay 

the plaintiff minimum wage for all hours she worked in one or more workweeks.

Quinonez v. Reliable Auto Glass, LLC, 2012 WL 2848426, *1-2 (D. Ariz. July 11, 2012). 

In order to prove overtime liability under the FLSA, the third element requires that the 

plaintiff prove that the defendant did not pay overtime pay for all hours the plaintiff 

worked in excess of 40 in one or more workweeks. Id.; see also 29 U.S.C. § 207. Here, 

there is no dispute of material fact: Defendants are liable to Plaintiff under the FLSA.

1. Defendants are FLSA “employers” who employed Plaintiff.

Under the FLSA an “employer” is “any person acting directly or indirectly in the 

interest of an employer in relation to an employee....” 29 U.S.C. § 203(d). An entity or 

individual is an employer under the FLSA where that entity or individual has: (1) the 

power to hire and fire employees, (2) the power to supervise and control employee work 

schedules, (3) the power to determine salaries, and (4) the responsibility to maintain 

Case 2:15-cv-01873-SMM Document 42 Filed 03/16/17 Page 5 of 19
6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

THE BENDAU LAW FIRM PLLC

P.O. Box 97066 

Phoenix, AZ 85060

employment records. Bonnette v. California Health and Welfare Agency, 704 F.2d 1465, 

1475 (9th Cir. 1983).5 Here, there is no question that all Three Defendants employed 

Plaintiffs, as that term is defined under the FLSA. SOF, ¶¶ 4-15.

2. Defendants are an Enterprise Engaged in Commerce that had 

Annual Gross Sales of at Least $500,000.

The FLSA defines an “enterprise engaged in commerce or the production of goods 

for commerce” to include “an enterprise whose annual gross volume of sales made or 

business done is not less than $500,000.” 29 U.S.C. § 203(s)(1)(A)(ii); see also Zorich v. 

Long Beach Fire Dept. and Ambulance Service, Inc., 118 F.3d 682, 684 (9th Cir. 1997). 

Here, the Answer admits that: “Plaintiffs, in their work for Defendant Sydney Rose, were 

employed by an enterprise engaged in commerce that had annual gross sales of at least 

$500,000.” (Dkt. 7, ¶ 19).

3. Defendants failed to pay Plaintiff minimum wage during his 

employment. 

The FLSA requires employers to pay covered employees a minimum hourly wage 

of $7.25. 29 U.S.C. § 206(a). The Act, moreover, requires that employers pay a 

minimum wage of $8.05 ($8.05 in 2015, $7.90 in 2014, and $7.80 in 2013). Arizona 

Revised Statutes (“A.R.S.”) § 23-363. The FLSA’s “savings clause” provides that the 

FLSA’s protections are the absolute minimum and requires employers to adhere to their 

state’s more protective wage and hour laws. See 29 U.S.C. § 218(a). Therefore, both the 

FLSA and the Act allow Arizona employers to take a maximum tip credit of $3.00 

against their minimum wage obligations to tipped employees. Id. See also 29 U.S.C. § 

 5 The Ninth Circuit has also held that the FLSA’s definition of “employer” is not 

limited by the common law concept of “employer” and “is to be given an expansive 

interpretation in order to effectuate the FLSA’s broad remedial purposes.” Real v. 

Driscoll Strawberry Assocs., 603 F.2d 748, 754 (9th Cir. 1979). Whether an employeremployee relationship exists does not depend on “isolated factors but rather upon the 

circumstances of the whole activity.” Rutherford Food Corp. v. McComb, 331 U.S. 722, 

730 (1947). “The touchstone is the ‘economic reality.’” Bonnette v. California Health 

and Welfare Agency, 704 F.2d 1465, 1469, quoting Goldberg v. Whitaker House 

Cooperative, Inc., 366 U.S. 28, 33 (1961).

Case 2:15-cv-01873-SMM Document 42 Filed 03/16/17 Page 6 of 19
7

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

THE BENDAU LAW FIRM PLLC

P.O. Box 97066 

Phoenix, AZ 85060

203(m); see also A.R.S. § 23-363(C); see also Montijo v. Romulus Inc., No. 2:14-cv00264-SMM 2015 WL 1470128, *8 fn. 4 (D. Ariz. March 30, 2015) (“Arizona has 

enacted a higher tip credit for employees such that the difference between the wage 

specified in paragraph (1) of 29 U.S.C. § 203(m) and the wage in effect under § 201(a)(1) 

is effectively $3.00. A.R.S. § 23-363(C)”). 

a. Defendants’ pay practices with respect to Plaintiff 

violated the FLSA’s minimum wage provisions as a 

matter of law.

Defendants regularly and consistently required Plaintiff to perform work without 

compensating him for that time by (1) manipulating his time punches to reflect fewer 

hours on his paycheck than he actually worked, (2) requiring him to attend unpaid 

meetings, and (3) requiring him to reimburse Defendants for broken dishes and register 

shortages. Because Plaintiff was a sub-minimum wage employee, any reduction in his 

pay would have necessarily brought his pay below the statutory minimum, in violation of 

the FLSA and the Act. 29 C.F.R. § 531.35; see also Mariche v. Phoenix Oil, LLC, 2014 

WL 2467964 *6 (D. Ariz. June 3, 2014).

i. Defendants manipulated Plaintiff’s time records, 

which deprived him of minimum wage as a matter 

of law.

Throughout Plaintiff’s entire employment, with the exception of two pay periods, 

Defendants deleted all time that Plaintiff clocked in excess of 40 hours in each and every

workweek he in fact worked more than 40 hours for them. ¶¶ 19-22. The time that 

Plaintiff clocked while working for Defendants, as reflected in the time clock records that 

Defendants produced in discovery, differs vastly from the wages Defendants paid 

Plaintiff, as reflected in the payroll records that the Parties produced in discovery. Id.

On one hand, the payroll records that each party produced show that no dispute 

exists as to the actual amount of money that Defendants paid Plaintiff during his entire 

employment. Id. On the other hand, when compared to the time clock records that 

Defendants produced, the payroll records show that Defendants manipulated Plaintiff’s 

Case 2:15-cv-01873-SMM Document 42 Filed 03/16/17 Page 7 of 19
8

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

THE BENDAU LAW FIRM PLLC

P.O. Box 97066 

Phoenix, AZ 85060

time records (to the exact hundredth of an hour in some instances) to delete any time in 

excess of 40 hours in every workweek that Plaintiff worked more than 40 hours. Id.

Take, for example, the pay period of April 7, 2014 through April 20, 2014. 

During the week of April 7, Plaintiff’s time clock punches show that he worked a total of 

57.48 hours (17.48 hours of overtime). Id. The time clock punches for both weeks show 

that he worked a total of 90.06 hours. Id. However, Defendants’ payroll journal shows 

that Plaintiff was only compensated for 72.58 hours. Id. The difference is 17.48 hours–

the exact amount of time over 40 hours that Plaintiff worked. Id.

The pay period of July 1, 2013 through July 14, 2013 shows similar manipulation. 

During the week of July 8, 2013, Plaintiff’s time clock punches show that he worked a 

total of 42.62 hours (2.62 hours of overtime). Id. The time clock punches for both weeks 

show that he worked a total of 60.64 hours. Id. However, Defendants’ payroll records 

show that he was only compensated for 58.02 hours. Id. The difference is 2.62 hours–

the exact amount of time over 40 hours that Plaintiff worked.

This practice was not limited to overtime–in many weeks, Defendants even 

deleted certain hours from the regular, 40-hours-or-less workweeks that Plaintiff worked. 

For example, during the pay period of September 23, 2013 through October 6, 

2013, Plaintiff’s time clock punches show that he worked 46 hours in the week of 

September 23, 2013 and 40.78 hours in the week of September 30, 2013. Id. This totals 

86.78 hours worked, including 6.78 hours of overtime. Id. However, Defendants’

payroll records and Plaintiff’s pay check show that he was only compensated for 76.39 

hours. Id. That difference is 10.39 hours–6.78 hours of unpaid overtime and even 3.61 

hours of unpaid minimum wage. 

This evidence reveals consistent manipulation by Defendants of Plaintiff’s wages 

for the entire duration of his employment. There can be no dispute that Defendants 

deprived Plaintiff of minimum wage and violated the FLSA as a matter of law.

/ /

/ /

Case 2:15-cv-01873-SMM Document 42 Filed 03/16/17 Page 8 of 19
9

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

THE BENDAU LAW FIRM PLLC

P.O. Box 97066 

Phoenix, AZ 85060

ii. Defendants required Plaintiff to attend unpaid 

meetings, which deprived him of minimum wage as 

a matter of law.

Throughout Plaintiff’s employment, Defendants required Plaintiff to attend unpaid 

meetings. SOF ¶ 23. Defendants’ policy and practice prohibited employees from 

clocking in while attending these meetings. Id. at ¶ 24. Defendants, by their own 

testimony, have admitted that these meetings were mandatory. Id. at ¶ 23. If an 

employee had a prior obligation that conflicted with a scheduled meeting, she was 

required to obtain approval to be excused from the meeting. Id. If an employee missed a 

meeting without approval, she was subject to discipline, including but not limited to, a 

verbal warning and a write up. Id.

Defendants typically notified employees of these meetings via Facebook, by 

posting the date and time of the meeting in the “Vino Pinot Employees” Facebook group. 

Id. at ¶ 28. These posts comprise the only available record of the dates or times of these 

meetings. In addition to the Facebook posts, Defendants provided testimony evidencing 

the dates, times, and frequency of certain meetings. Id. at ¶¶ 27-28. For example, Tirkas 

testified in his corporate capacity that they held weekly manager meetings on Monday 

mornings at approximately 8:30 am, and that during his employment, Plaintiff attended 

manager meetings. Id. at 23. Tirkas also testified that Defendants held cleaning parties 

approximately once per month, and they would last up to four hours. Id. Attendance at 

these cleaning parties was mandatory. Id.

Comparing these Facebook posts with Plaintiff’s time clock records reveals that 

Plaintiff was not clocked in during the majority6 of the dates and/or times of these 

meetings, even on dates when Plaintiff was the individual conducting training. Id. at 25.

Defendants have produced zero evidence to support their claim that Plaintiff’s lack of 

time clock punches means he was not present. In the absence of such evidence or any 

records of who attended these meetings, the Court must reasonably infer that Plaintiff 

 6 The evidence reveals that, during one training session on March 23, 2014, Plaintiff 

was clocked in. However, this is because Plaintiff worked prior to the meeting and forgot 

to clock out. See SOF ¶ 25.

Case 2:15-cv-01873-SMM Document 42 Filed 03/16/17 Page 9 of 19
10

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

THE BENDAU LAW FIRM PLLC

P.O. Box 97066 

Phoenix, AZ 85060

attended these meetings without clocking in, rather than that Plaintiff attended no 

mandatory meetings over the course of his two years of employment with Defendants and 

was never disciplined for it. The evidence reveals Defendants’ consistent failures to pay

Plaintiff for time spent attending unpaid meetings for his entire employment. There is no 

dispute then that Defendants deprived him of minimum wage as a matter of law.

iii. Defendants required Plaintiff to reimburse the 

restaurant for breakage and register shortages, 

which deprived him of minimum wage as a matter 

of law.

Required reimbursements from employees are impermissible if the deductions 

drop an employee’s salary below the statutory minimum. 29 C.F.R. § 531.35; see also 

Mariche v. Phoenix Oil, LLC, 2014 WL 2467964 *6 (D. Ariz. June 3, 2014) (citing 

Mayhue’s Liquor Stores, Inc.v. Hodgson, 464 F.2d 1196 (5th Cir. 1972)). Throughout 

Plaintiff’s employment, Defendants maintained several policies requiring employees to 

reimburse the restaurant, including reimbursing the restaurant for breakage and register 

shortages. SOF ¶¶ 29-32. As a result of Defendants requiring such reimbursements from

the wages of sub-minimum wage employees, Plaintiff’s pay was reduced below the 

statutory minimum as a matter of law.

In addition to Defendants’ written policy of requiring reimbursement for breakage, 

Tirkas, in his corporate capacity, testified that it was Defendants practice to require 

employees to reimburse the restaurant for breakage. Id. at ¶¶ 29-30. If an employee 

broke an item, he was required to write down on Defendants’ breakage form his name, 

the item he broke, the date, and the cost of the item as listed on a corresponding form. Id. 

In order to collect this money from employees, Defendants reduced the number of hours 

the employee worked that Defendants determined was commensurate with the value of 

that item. Id. Plaintiff was both subject to this policy and required to reimburse the 

restaurant on several occasions. Id. As a result, Defendants reduced Plaintiff’s pay below 

the statutory minimum, and Defendants violated the FLSA and the Act.

Further, Defendants required employees, including Plaintiff, to reimburse the 

Case 2:15-cv-01873-SMM Document 42 Filed 03/16/17 Page 10 of 19
11

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

THE BENDAU LAW FIRM PLLC

P.O. Box 97066 

Phoenix, AZ 85060

restaurant for cash register shortages. Id. at ¶¶ 31-32. In the event that a register was 

short, Defendants would deduct the shortage from the employee’s tips from that night or 

the next night, depending on when the discrepancy was discovered. Id. On multiple 

occasions throughout his employment with Defendants, Plaintiff was required to 

reimburse the restaurant for a cash register shortage from his tips. Id. As a result, 

Defendants failed to comply with § 203(m), were not entitled to use a tip credit, and 

therefore violated § 206(a). 29 U.S.C. § 203(m); 29 C.F.R. § 531.35.

iv. Plaintiff was deprived of minimum wage for two 

workweeks because his paycheck shows that his 

hourly pay plus tips falls short of minimum wage,

and Defendants did not make up the difference.

During at least two workweeks, Plaintiff did not receive sufficient tips to bring his 

hourly wage to the applicable minimum. On June 12, 2014, Plaintiff received a paycheck 

for the pay period of May 19, 2014 through June 1, 2014. SOF at ¶¶ 33-36. The 

paycheck shows that Plaintiff worked a total of 78 hours at a rate of $5.10 per hour and 

that Plaintiff received $8.01 in tips for that two-week pay period. Based on those hours, 

Plaintiff should have received at least $616.20 for the pay period ($7.90 per hour x 78 

hours). However, the total for the paycheck was only $405.81. Id. Defendants have 

produced no evidence to show that they made up the difference as required under Federal 

and Arizona law. Id. Tirkas even admitted that Plaintiff did not receive minimum wage 

for that pay period and that Defendants did not make up the difference. Id. Therefore, it 

cannot be disputed that for the workweeks of May 19, 2014 through June 1, 2015, 

Defendants failed to pay Plaintiff minimum wage in violation of the FLSA and the Act.

b. Defendants cannot meet their burden to show that they 

properly took a tip credit because they failed to inform 

Plaintiff of the FLSA’s tip credit provisions.

Defendants have not, and cannot, satisfy their burden of proving that they properly 

imposed a tip credit on Plaintiffs. 29 U.S.C. § 203(m) states that the tip credit: 

shall not apply with respect to any tipped employee unless such employee has 

been informed by the employer of the provisions of this subsection, and all tips 

received by such employee have been retained by the employee, except that this 

Case 2:15-cv-01873-SMM Document 42 Filed 03/16/17 Page 11 of 19
12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

THE BENDAU LAW FIRM PLLC

P.O. Box 97066 

Phoenix, AZ 85060

subsection shall not be construed to prohibit the pooling of tips among employees 

who customarily and regularly receive tips.

29 U.S.C. § 203(m); see also Oregon Restaurant and Lodging Ass’n v. Perez, 816 F.3d 

1080, 1082 (9th Cir. 2016) (“Section 203(m) obligates employers who take a tip credit to: 

(1) give notice to its employees, and (2) allow its employees to retain all tips they receive, 

unless such employees participate in a valid tip pool”).

In the context of the tip credit exception, federal courts have held that “[i]t is the 

employer’s burden to show that it has satisfied all the requirements for tip-credit 

eligibility.” Perez v. Lorraine Ent., Inc., 769 F.3d 23, 27 (1st Cir. 2014); see also 

Montano v. Montrose Rest. Associates, Inc., 800 F.3d 186, 189 (5th Cir. 2015); 

Barcellona v. Tiffany English Pub, Inc., 597 F.2d 464, 467 (5th Cir.1979).

Under the FLSA and its supporting regulations, tips are not wages paid by the 

employer. 29 C.F.R. § 531.52; see also Romero v. Top-Tier Colorado LLC, --- F.3d ----, 

2017 WL 892340 (10th Cir. March 7, 2017) (reversing and remanding due to the district 

court’s conflation of “tips earned” versus “wages paid”). While tips can be used as a 

credit toward the employer’s minimum wage obligation, the total wages paid to a tipped 

employee by the employer utilizing the tip credit is always less than the full minimum 

wage. 29 U.S.C. § 203(m). Thus, the relevant inquiry is whether the employer is entitled 

to take the tip credit in the first place. 

Here, Defendants were not entitled to take the tip credit against any of the hours 

that Plaintiff worked each week because the undisputed facts show that Defendants failed 

to inform Plaintiff of the provisions of 29 U.S.C. § 203(m), which was sufficient to 

preclude Defendants from imposing a tip credit upon Plaintiffs’ wages.

The FLSA requires an employer to inform its tipped employees of its “tipped 

employee” provisions prior to taking a tip credit. 29 U.S.C. § 203(m). 29 C.F.R. § 

531.59(b) sets forth specific provisions of which an employer of tipped employees must 

inform such tipped employees prior to imposing the tip credit. See 29 C.F.R. § 531.7

 7 While the FLSA does not require written tip credit notice, Arizona law does. See 

Arizona Administrative Code (“A.A.C.”) § R20-5-1207(C) (“Upon hiring or assigning an 

Case 2:15-cv-01873-SMM Document 42 Filed 03/16/17 Page 12 of 19
13

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

THE BENDAU LAW FIRM PLLC

P.O. Box 97066 

Phoenix, AZ 85060

Defendants designated Tirkas to testify specifically as to “Vino Pinot Dining, 

LLC’s efforts...to comply with the tip credit notice requirements or provisions of 29 

U.S.C. § 203(m) and 29 C.F.R. § 531.59.” Dkt. 31-1, p. 2-3, ¶ 5. Tirkas testified in his 

corporate capacity for Vino Pinot that he had no personal knowledge of any individual 

notifying Plaintiff of the tip credit provisions of the FSLA, nor of any documentation that 

evidence that Plaintiff was notified of the tip credit provisions of the FLSA. SOF ¶¶ 37-

42. Absent any other probative evidence, Defendants’ unsupported assertion that it was 

their policy to give employees notice of the tip credit provision of the FLSA is 

insufficient evidence to create an issue of fact for trial.

The only document Defendants produced to support the contention that they gave 

Plaintiff proper notice of the tip credit provisions of the FLSA is a single Arizona state 

wage poster from 2014. Id. ¶ 40. While Defendants claim they do not keep old posters 

after receiving the updates, the photograph Defendants provided of the 2014 Arizona 

wage poster was disclosed on February 12, 2016 with Defendants’ Initial Disclosures. Id. 

Defendants have produced evidence sufficient to show only that they possessed a 2014 

Arizona Labor Law poster in 2016. Id. Based on these undisputed facts, Defendants 

cannot meet their burden to show that they provided Plaintiff with FLSA-required tip 

credit notice per 29 U.S.C. § 203(m). No trier of fact or law could find otherwise.

4. Defendants’ manipulation of Plaintiff’s time records and 

requirement that he attend unpaid meetings conclusively 

establish they Defendants failed to pay overtime to Plaintiff for 

any time he worked in excess of 40 hours in a workweek.

The FLSA requires employers to pay covered, non-exempt employees one and 

one-half times their regular rates of pay for all time worked in excess of 40 hours per 

week. 29 U.S.C. §§ 206, 207. As shown in Section (III)(A)(3)(a)(i) of this Motion, 

Defendants deleted Plaintiff’s time clock records for all time he worked in excess of 40 

 

individual to a position that customarily and regularly receives tips, an employer 

intending to exercise a tip credit shall provide written notice to the employee prior to 

exercising the tip credit. Thereafter, the employer shall notify the employee in writing 

each pay period of the amount per hour that the employee takes as a tip credit.”)

Case 2:15-cv-01873-SMM Document 42 Filed 03/16/17 Page 13 of 19
14

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

THE BENDAU LAW FIRM PLLC

P.O. Box 97066 

Phoenix, AZ 85060

hours in any workweek, and did not pay him at all for required meetings and training.

Plaintiff therefore hereby incorporates the facts and arguments contained in sections

Section (III)(A)(3)(a)(i) of this Motion, above. SOF ¶¶ 19-22. Moreover, as shown 

below, Plaintiff’s estimates of the dates and hours he spent at unpaid meetings clearly 

show that Plaintiff worked in excess of 40 hours per workweek during many workweeks

of his employment with Defendants. Id. Therefore, Defendants did not pay overtime 

whatsoever to Plaintiff for any time he worked more than 40 hours in a given workweek.

5. Defendants’ FLSA violations were willful, which gives Plaintiffs 

the benefit of a three-year statute of limitations.

Defendants’ conduct in manipulating Plaintiff’s time records was so egregious that 

there can be no other conclusion than that they acted willfully in failing to compensate 

Plaintiff minimum wage and overtime for the hours he worked. Ordinarily, an FLSA 

violation has a two-year statute of limitations. See 29 U.S.C. §§ 216(b) and 255(a). 

However, “a cause of action arising out of a willful violation may be commenced within 

three years after the cause of action accrued.” Id. To show an employer’s conduct was 

willful, an employee must show “‘that the employer either knew or showed reckless 

disregard for the matter of whether its conduct was prohibited.’” McLaughlin v. Richland 

Shoe Co., 486 U.S. 128, 133 (1988). The Ninth Circuit held that, “for §255’s extension to 

obtain, an employer need not knowingly have violated the FLSA; rather, the three-year 

term can apply where an employer disregarded the very ‘possibility’ that is was violating 

the statute.” Alvarez v. IBP, Inc., 339 F.3d 894, 908-09 (9th Cir. 2003). 

Here, Defendants did not simply neglect to pay money that was owed; rather, they 

fraudulently reduced the amount of hours Plaintiff actually worked in order to mask their 

post-40-hour-workweek overtime and minimum wage obligations. SOF at ¶¶ 19-22. As 

shown in Plaintiff’s April 15 and 29, 2013 paychecks, Defendants were clearly aware of 

their obligation to pay overtime for all hours worked in excess of 40 hours per week, Id. at 

¶¶ 19, 22, 47. Nonetheless, Defendants thereafter reduced Plaintiff’s hours worked to 

Case 2:15-cv-01873-SMM Document 42 Filed 03/16/17 Page 14 of 19
15

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

THE BENDAU LAW FIRM PLLC

P.O. Box 97066 

Phoenix, AZ 85060

remove any hours over 40 per week to avoid paying Plaintiff overtime. Id. at 19-22. 

Additionally, Tirkas testified in his corporate capacity that he knew Plaintiff was a 

minimum wage worker, and that reducing Plaintiff’s wages pursuant to their breakage and 

register shortage policies reduced Plaintiff’s pay below minimum wage. Id. at ¶¶ 18, 49.

Defendants’ awareness of the FLSA and the Act and efforts to comply with them 

show their knowledge of their requirements. Their failure to comply nonetheless shows 

reckless disregard for their mandates, if not actual knowledge. Therefore, Defendants’ 

FLSA violations were willful, entitling Plaintiff to a three-year statute of limitations.

B. Plaintiff has the only evidence showing his unpaid wages for the 

required unpaid meetings Defendants required him to attend.

Defendants failed to keep and maintain adequate and accurate records of the dates 

and times that Plaintiff attended meetings, training, and cleaning parties. The failure to 

keep and maintain adequate and accurate records for Plaintiff violates the FLSA and 29 

C.F.R. § 516’s strict recordkeeping requirements. See also 29 C.F.R. §§ 516.2, 516.5, and 

516.6. The 9th Circuit has held that an employer’s lack of recordkeeping cannot be used 

to “penalize the employee by denying him recovery on the ground that he is unable to 

prove the precise extent of uncompensated work.” Brock v. Seto, 790 F.2d 1446, 1448 

(9th Cir. 1986), quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946). In 

Anderson, the Supreme Court held,

When the employer has kept proper and accurate records the employee may easily 

discharge his burden by securing the production of those records. But where the 

employer’s records are inaccurate or inadequate and the employee cannot offer 

convincing substitutes a more difficult problem arises. The solution, however, is 

not to penalize the employee by denying him any recovery on the ground that he is 

unable to prove the precise extent of uncompensated work. Such a result would 

place a premium on an employer’s failure to keep proper records in conformity 

with his statutory duty; it would allow the employer to keep the benefits of an 

employee’s labors without paying due compensation as contemplated by the Fair 

Labor Standards Act. In such a situation we hold that an employee has carried out 

his burden if he proves that he has in fact performed work for which he was 

improperly compensated and if he produces sufficient evidence to show the 

amount and extent of that work as a matter of just and reasonable inference. The 

Case 2:15-cv-01873-SMM Document 42 Filed 03/16/17 Page 15 of 19
16

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

THE BENDAU LAW FIRM PLLC

P.O. Box 97066 

Phoenix, AZ 85060

burden then shifts to the employer to come forward with evidence of the precise 

amount of work performed or with evidence to negative the reasonableness of the 

inference to be drawn from the employee’s evidence. If the employer fails to 

produce such evidence, the court may then award damages to the employee, even 

though the result be only approximate.

Anderson, 328 U.S. at 687-88. See also A.R.S. § 23-364(D) (failure to maintain records 

showing hours worked “shall raise a rebuttable presumption that the employer did not 

pay the required minimum wage rate”).

There is no dispute that Defendants have no time clock records evidencing the 

dates or hours of the unpaid meetings. SOF at ¶¶ 27, 43-44. The only records evidencing 

these dates and times are the posts made in the Vino Pinot Employee Facebook Group. 

Id. at ¶ 28. The posts in the Vino Pinot Employee Facebook group, combined with 

Defendants’ own testimony, satisfy Plaintiff’s burden to establish such dates and hours 

worked by just and reasonable inference, which Defendants will be unable to overcome.

Plaintiff’s estimates, provided with this Motion, show the amount and extent of the dates 

and times he spent attending these required, yet unpaid, meetings, and Defendants have 

no evidence to overcome Plaintiff’s estimates. Therefore, Plaintiff is entitled to damages 

based on those estimates, even though they are approximate.

1. Defendants have no records in their possession evidencing 

Plaintiff’s unpaid meetings dates and times.

Defendants testified that the unpaid meetings were mandatory. SOF at ¶ 23.

Plaintiff attended all of the meetings. Id. at ¶¶ 23-25. As shown above in section 

(III)(A)(3)(a)(ii), Plaintiff was not clocked in for the majority of the unpaid meetings 

evidenced by the Facebook posts and Defendants’ testimony. Further, Defendants have 

produced no evidence to show that Plaintiff did not attend the unpaid meetings. Id. at ¶¶ 

26-28. The reasons proffered for this deficiency are irrelevant–all that matters is that the 

deficiency exists. Therefore, Defendants bear the heavy burden of overcoming the 

presumption of Plaintiffs’ calculations and supporting testimony.

/ /

Case 2:15-cv-01873-SMM Document 42 Filed 03/16/17 Page 16 of 19
17

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

THE BENDAU LAW FIRM PLLC

P.O. Box 97066 

Phoenix, AZ 85060

2. Plaintiff’s estimates of his unpaid meetings establish the dates 

and hours he worked by just and reasonable inference.

Plaintiff’s calculations, which are based upon the Facebook posts and Defendants’ 

testimony, easily satisfy his obligation to show his unpaid meetings time by just and 

reasonable inference. Defendants bear the burden of overcoming Plaintiff’s calculations. 

To hold otherwise would incentivize an employer to neglect its recordkeeping duties

under federal law and “allow the employer to keep the benefit of an employee’s labor 

without paying due compensation as contemplated by the [FLSA].” Brock, 790 F.2d at 

1448. Fortunately, Brock holds, “[i]n such a situation, ‘an employee has carried out his 

burden if he proves that he has in fact performed work for which he was improperly 

compensated and if he produces sufficient evidence to show the amount and extent of that 

work as a matter of a just and reasonable inference.’” Id. (emphasis added). 

3. Defendants have no evidence to negate the reasonableness of the 

inference drawn from Plaintiff’s estimates.

Defendants have provided no evidence to negate the reasonableness of Plaintiff’s 

estimates. Defendant Tirkas, in his corporate capacity, testified that he has no reason to 

believe that any of the unpaid meetings referenced on the Vino Pinot Employees 

Facebook group did not actually take place. SOF at ¶ 25. He further stated that he has no 

reason to believe that Plaintiff did not attend any of the meetings. Defendants have no 

discipline forms for Plaintiff’s failure to attend meetings. Id.

C. The FLSA violations are deliberate and definitive, and the damages are 

easily quantifiable.

This case presents several instances of clear FLSA violations. Defendants knew 

that Plaintiff was earning less than minimum wage. SOF at ¶¶ 16-18. Defendants admit 

to paying Plaintiff for fewer hours than he worked. See, e.g., id. at 30. Defendants admit 

that the meetings, training, and cleaning parties were mandatory and that Plaintiff 

attended some of the weekly manager meetings, yet Plaintiff was not compensated for 

attending any of them. Id. at ¶¶ 23-26. Defendants’ payroll records show their pattern 

and practice of reducing Plaintiff’s hours to eliminate all overtime pay, but also to 

Case 2:15-cv-01873-SMM Document 42 Filed 03/16/17 Page 17 of 19
18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

THE BENDAU LAW FIRM PLLC

P.O. Box 97066 

Phoenix, AZ 85060

eliminate many of Plaintiff’s regular 40 hours. Id. at ¶¶ 19-22. 

Plaintiff’s damage chart compares the hours Plaintiff worked (as shown on the 

time clock report) and the hours for which Defendants compensated Plaintiff (as shown 

on Plaintiff’s pay stubs and Defendants’ payroll report). It identifies the amount of hours

Defendants failed to compensate Plaintiff and calculates the wages owed, as well as 

associated damages. Id. at ¶¶ 19-22, 45. Additionally, Plaintiff’s meeting chart identifies 

the meetings Plaintiff was required to attend, as identified through Facebook posts and 

Defendants’ testimony, by date, approximate length, and the resulting wages and 

associated damages. Id.

IV. Conclusion and Requested Relief.

Defendants violated the FLSA and the Act by not paying Plaintiff wages for work 

performed. Defendants all but admit liability to Plaintiff in their Answer and in 

depositions. Because this request for summary judgment is based primarily on 

Defendants’ sworn statements, and that Plaintiff has the only evidence of his hours 

worked, the Court should enter summary judgment for Plaintiff. Plaintiff requests that 

the Court find Plaintiff’s unpaid wages damages to be $12,386.72 and that the Court 

further find that Plaintiff is entitled to an additional equal amount in liquidated damages 

under 29 U.S.C. § 216(b) and an additional amount equal to twice the unpaid wages as 

liquidated damages under A.R.S. § 23-364 against Defendants and in favor of Plaintiff. 

If this Motion is successful, Plaintiff will file an application with the Court to recover his

attorneys’ fees and costs under 29 U.S.C. § 216(b) and A.R.S. § 23-364.

RESPECTFULLY SUBMITTED this 16th day of March, 2017.

THE BENDAU LAW FIRM PLLC

/s Clifford P. Bendau, II

Clifford P. Bendau, II

Attorney for Plaintiff

Case 2:15-cv-01873-SMM Document 42 Filed 03/16/17 Page 18 of 19
19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

THE BENDAU LAW FIRM PLLC

P.O. Box 97066 

Phoenix, AZ 85060

Certificate of Service

I certify that on this 16th day of March, 2017, I electronically transmitted the 

attached document to the Clerk’s Office using the CM/ECF system for filing and 

transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

Martin A. Bihn

BIHN & MCDANIEL, P.L.C.

2600 N. Central Ave, Suite1775

Phoenix, AZ 85004

/s/Clifford P. Bendau, II

Clifford P. Bendau, II

Attorney for Plaintiff

Case 2:15-cv-01873-SMM Document 42 Filed 03/16/17 Page 19 of 19