Opinion
Case No. 4:16-cv-00086-SMR-HCA
2019-10-22
Alicia M. HOWE, on behalf of herself and all others similarly situated, Plaintiff, v. JOHNNY'S ITALIAN STEAKHOUSE, L.L.C., Defendant.
Harley C. Erbe, Erbe Law Firm, Steven P. Wandro, Wandro & Associates, P.C., Des Moines, IA, for Plaintiff. Espnola F. Cartmill, Kelsey J. Knowles, Michael R. Reck, Belin McCormick, P.C., Des Moines, IA, for Defendant.
Harley C. Erbe, Erbe Law Firm, Steven P. Wandro, Wandro & Associates, P.C., Des Moines, IA, for Plaintiff.
Espnola F. Cartmill, Kelsey J. Knowles, Michael R. Reck, Belin McCormick, P.C., Des Moines, IA, for Defendant.
ORDER ON MOTION FOR SUMMARY JUDGMENT
STEPHANIE M. ROSE, JUDGE
Before the Court is Defendant's Motion for Summary Judgment. [ECF No. 108]. Neither party has requested oral argument on the motion, and the Court finds the issues can be resolved without it. See LR 7(c). The matter is fully submitted and ready for decision. For the reasons stated herein, the motion is GRANTED.
I. BACKGROUND
The Court previously set out the legal and factual background of this case in its September 11, 2018 Order denying Plaintiff's Motion for Conditional Collective Certification under the Fair Labor Standards Act ("FLSA" or the "Act") and Class Certification under Federal Rule of Civil Procedure 23, [ECF No. 91]. The background sections of that Order are incorporated by reference.
From 2012 to 2016, Plaintiff Alicia Howe worked as a server at the Des Moines, Iowa, location of Defendant Johnny's Italian Steakhouse ("Johnny's"). Johnny's is a fine dining establishment intended to provide an upscale environment evoking 1940s and 50s "supper clubs." [ECF No. 108-3 at 20]. As a server at Johnny's, Plaintiff was paid a tipped rate—that is, the minimum wage allowable for tipped employees under state and federal law. As explained infra , the tipped minimum wage is lower than the minimum wage that applies to non-tipped employees. Plaintiff's main responsibility as a server was to wait on Johnny's customers, which generated tips. Factoring in tips and wages, Plaintiff earned, on average, over $18 per hour as a server at Johnny's.
In addition to waiting on customers, servers at Johnny's are required to complete various other tasks, known as side work. Thus, Plaintiff performed tasks including brewing beverages, rolling and polishing silverware, filling table condiments, cutting lemons, maintaining bread/soup/soda/expo stations, and stocking ice. Plaintiff maintains she did not have the opportunity to earn tips while performing side work. Although the specific side work Plaintiff was required to perform and the time it took to perform it could vary from shift to shift, Plaintiff maintains she spent more than twenty percent of her working time engaged in tasks that did not produce tips. In addition to her typical work as a server at Johnny's, Plaintiff also occasionally worked events catered by Johnny's at the Blank Park Zoo in Des Moines, Iowa. The Court will discuss additional facts as they become relevant.
Plaintiff commenced this action in the Iowa District Court for Polk County. [ECF No. 1-1]. Johnny's—along with the other named Defendant in the state Petition, Heart of America Management L.L.C. ("HOA Management")—removed the case to this Court. [ECF No. 1]. Plaintiff eventually filed a Second Amended Complaint asserting claims against Johnny's, HOA Management, and an individual named Michael Whalen. [ECF No. 70]. On behalf of herself and similarly situated persons, Plaintiff asserted claims under the FLSA, the Iowa Minimum Wage Law, and the Iowa Wage Payment Collection Law. Plaintiff alleged Defendants improperly paid servers at Johnny's and other restaurants operated by HOA Management the tipped minimum wage for time spent on non-tip-producing tasks. Because such tasks comprised more than twenty percent of the servers' working time, Plaintiff alleged, Defendants were required to pay them the regular (i.e., non-tipped) minimum wage. Plaintiff sought to pursue this case as a collective action under the FLSA as to her federal claim, and as a Rule 23 class as to her state-law claims. [ECF No. 76].
HOA Management was Johnny's management company. Whalen owned the trademark "Heart of America," which he licensed to various entities, including Johnny's and HOA Management.
The Court denied Plaintiff's motion for class certification and to proceed as a collective action. [ECF No. 91]. Thereafter, the parties stipulated to the voluntary dismissal (without prejudice) of Defendants Whalen and HOA Management, and of Plaintiff's state-law claims. [ECF No. 97]. This matter therefore proceeded to discovery on Plaintiff's FLSA claim against Johnny's.
Hereafter, any reference to a singular "Defendant" is to Johnny's.
After the close of discovery, Defendant filed the instant Motion for Summary Judgment. [ECF No. 108]. Defendant advances two primary arguments: (1) recent changes in the law defeat Plaintiff's claim; and (2) even if such changes do not apply, Plaintiff has not shown sufficient evidence of the amount and extent of the work for which she was improperly compensated. Plaintiff resists the motion.
II. STANDARD OF REVIEW
Summary judgment is proper when "the movant shows 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) ; Paulino v. Chartis Claims, Inc. , 774 F.3d 1161, 1163 (8th Cir. 2014). "A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party; a fact is material if its resolution affects the outcome of the case." Amini v. City of Minneapolis , 643 F.3d 1068, 1074 (8th Cir. 2011) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of the judge." Anderson , 477 U.S. at 255, 106 S.Ct. 2505. Even so, at the summary judgment stage, courts must view "the facts in the light most favorable to the nonmoving party and giv[e] that party the benefit of all reasonable inferences that can be drawn from the record." Pedersen v. Bio-Med. Applications of Minn. , 775 F.3d 1049, 1053 (8th Cir. 2015) (quoting Johnson v. Wells Fargo Bank, N.A. , 744 F.3d 539, 541 (8th Cir. 2014) ). To preclude the entry of summary judgment, the nonmovant must make a sufficient showing on every essential element of its case for which it has the burden of proof at trial. Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). But "the nonmoving party [need not] produce evidence in a form that would be admissible at trial in order to avoid summary judgment." Id. at 324, 106 S.Ct. 2548.
III. ANALYSIS
A. Governing Law
As Plaintiff explains in her Second Amended Complaint, "Plaintiff asserts ... the following basic claim: (1) Defendant[ ] require[d] Plaintiff ... to perform non-tipped work ... in excess of twenty percent (20%) of [her] time at work; and (2) Defendant[ ] should have but failed to pay [her] ... regular minimum wage at $7.25 per hour for any hours spent engaged in non-tipped labor, rather than the tipped worker minimum wage of $4.35 per hour under Iowa law." [ECF No. 70 ¶ 29].
Under the FLSA, employers may pay tipped employees a base wage of $2.13 per hour instead of the federally mandated minimum wage of $7.25 per hour, so long as tips make up the difference between those two rates. See 29 U.S.C. §§ 203(m), 206(a)(1) ; 29 C.F.R. § 531.59(a). This difference is known as a "tip credit." See 29 C.F.R. § 531.59(a). Under the Act, a "tipped employee" is one who is "engaged in an occupation in which he [or she] customarily and regularly receives more than $30 a month in tips." 29 U.S.C. § 203(t). It is undisputed that Plaintiff was a "tipped employee" under the Act.
In 1967, the Department of Labor ("DOL") promulgated a regulation concerning the application of the tip credit when an employee is engaged in "dual jobs"—one in which he or she is a tipped employee, and one in which he or she is not. See Wage Payments under the Fair Labor Standards Act of 1938, 32 Fed. Reg. 13,575, 13,580 –81 (Sept. 28, 1967). The regulation states:
Dual jobs. In some situations an employee is employed in a dual job, as for example, where a maintenance man in a hotel also serves as a waiter. In such a situation the employee, if he customarily and regularly receives at least $30 a month in tips for his work as a waiter, is a tipped employee only with respect to his employment as a waiter. He is employed in two occupations, and no tip credit can be taken for his hours of employment in his occupation of maintenance man. Such a situation is distinguishable from that of a waitress who spends part of her time cleaning and setting tables, toasting bread, making coffee and occasionally washing dishes or glasses. It is likewise distinguishable from the counterman who also prepares his own short orders or who, as part of a group of countermen, takes a turn as a short order cook for the group. Such related duties in an occupation that is a tipped occupation need not by themselves be directed toward producing tips.
29 C.F.R. § 531.56(e) (the "Dual Jobs Regulation"). As the United States Court of Appeals for the Eighth Circuit has recognized, the Dual Jobs Regulation is ambiguous in that "it does not address the impact of an employee performing related duties more than ‘part of [the] time’ or more than ‘occasionally.’ " Fast v. Applebee's Int'l, Inc. , 638 F.3d 872, 877 (8th Cir. 2011) (alteration in original). "Nor does it define ‘related duties’ or address a tipped employee who performs duties unrelated to his [or her] tipped occupation." Id.
Addressing these ambiguities, in the years after promulgating the Dual Jobs Regulation, the DOL issued interpretive guidance through opinion letters and—most notably—its Field Operations Handbook ("FOH"). Id. In 1988, the DOL added a section to the FOH addressing the Dual Jobs Regulation. Id. In relevant part, the section read:
(2) 29 CFR [§] 531.56(e) permits the employer to take a tip credit for time spent in duties related to the tipped occupation of an employee, even though such duties are not by themselves directed toward producing tips, provided such related duties are incidental to the regular duties of the tipped employees and are generally assigned to the tipped employee. For example, duties related to the tipped occupation may include a server who does preparatory
or closing activities, rolls silverware and fills salt and pepper shakers while the restaurant is open, cleans and sets tables, makes coffee, and occasionally washes dishes or glasses.
(3) However, where the facts indicate that tipped employees spend a substantial amount of time (i.e. , in excess of 20 percent of the hours worked in the tipped occupation in the workweek) performing such related duties, no tip credit may be taken for the time spent in those duties. All related duties count toward the 20 percent tolerance.
(4) Likewise, an employer may not take a tip credit for the time that a tipped employee spends on work that is not related to the tipped occupation. For example, maintenance work (e.g. , cleaning bathrooms and washing windows) are not related to the tipped occupation of a server; such jobs are non-tipped occupations. In this case, the employee is effectively employed in dual jobs.
U.S. Dep't of Labor, Field Operations Handbook, § 30d00(f)(2)–(4) (rev. Dec. 15, 2016). Thus, under 29 C.F.R. § 531.56(e), as interpreted by the DOL, employers violated the FLSA when they paid tipped employees less than the minimum wage for time spent performing: (1) untipped work that was unrelated to the tipped occupation, regardless of the amount of time spent performing such work; and (2) untipped work that was related to the tipped occupation but which, cumulatively, took up more than twenty percent of the employee's time (the "80/20 Rule").
The DOL adopted the 80/20 Rule in various amicus briefs before federal appellate courts, including the Eighth Circuit. See Belt v. P.F. Chang's China Bistro, Inc. , 401 F.Supp.3d 512, 522–23 (E.D. Pa. 2019) (collecting cases from the United States Courts of Appeals for the Eighth, Ninth, and Tenth Circuits). Further, in Fast , the Eighth Circuit held that the 80/20 Rule was entitled to deference under Auer v. Robbins , 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). Fast , 638 F.3d at 879–81. Thus, the 80/20 Rule has been the law of this circuit since 2011.
But on November 8, 2018, the DOL issued an opinion letter in which it purported to supersede the 80/20 Rule. U.S. Dep't of Labor, Wage & Hour Div., Opinion Letter FLSA2018-27 (Nov. 8, 2018), 2018 WL 5921455, at *3 ("November 2018 Opinion Letter"). The agency stated that section 30d00(f) of the FOH (containing the 80/20 Rule) "resulted in some confusion and inconsistent application and, as a result, may require clarification." Id. at *1. The DOL "d[id] not intend to place a limitation on the amount of duties related to a tip-producing occupation that may be performed, so long as they are performed contemporaneously with direct customer-service duties and all other requirements of the Act are met." Id. at *3. To that end, the letter referred employers to the "core or supplemental" duties of the tip-producing occupation at issue listed on the DOL's Occupational Information Network ("O*NET"). Id. It noted that "[n]o limitation shall be placed on the amount of these duties that may be performed, whether or not they involve direct customer service, as long as they are performed contemporaneously with the duties involving direct service to customers or for a reasonable time immediately before or after performing such direct-service duties." Id. It also noted that employers "may not take a tip credit for time spent performing any tasks not contained on the O*NET task list." Id. The letter indicated that the FOH would be revised to reflect these changes. Id. On February 15, 2019, the DOL revised section 30d00(f) of the FOH. The 80/20 Rule formerly found in section 30d00(f)(3) has been removed from the handbook. In its stead, revised section 30d00(f)(2) states that the Dual Jobs Regulation "permits the employer to take a tip credit for any time the employee spends in duties related to the tipped occupation, even though such duties are not themselves directed toward producing tips." U.S. Dep't of Labor, Field Operations Handbook, § 30d00(f)(2) (rev. Feb. 15, 2019). Like in the November 2018 Opinion Letter, the revised FOH directs staff of the DOL's Wage and Hour Division to O*NET to determine whether duties "are related or unrelated to the tip-producing occupation." Id. § 30d00(f)(3). It then states, "[a]n employer may take a tip credit for any amount of time that an employee spends on related, non-tipped duties performed contemporaneously with the tipped duties—or for a reasonable time immediately before or after performing the tipped duties—regardless whether those duties involve direct customer service." Id. § 30d00(f)(3)(a).
These changes have not been without controversy, and at least two district courts within this circuit have accorded no deference to the DOL's revised interpretation of the Dual Jobs Regulation. Esry v. P.F. Chang's China Bistro, Inc. , 373 F. Supp. 3d 1205, 1210–11 (E.D. Ark. 2019) ; Cope v. Let's Eat Out, Inc. , 354 F. Supp. 3d 976, 986 (W.D. Mo. 2019). In so doing, these courts have noted that the new interpretation's apparent omission of a temporal restriction on the amount of related duties a tipped employee can perform while still earning the tipped minimum wage reflects a sharp break from the DOL's previous position and conflicts with the Dual Jobs Regulation. Esry , 373 F. Supp. 3d at 1210 ; Cope , 354 F. Supp. 3d at 986. Further, these courts opted to apply (or signaled they would apply) the 80/20 Rule not as an application of the DOL's previous interpretation, but as their own reasonable interpretation of the Dual Jobs Regulation. Esry , 373 F. Supp. 3d at 1211 ; Cope , 354 F. Supp. 3d at 986–87. Thus, the 80/20 Rule still applies in these courts despite the DOL's efforts to rescind it.
Defendant argues the DOL's new interpretation of the Dual Jobs Regulation, as set out in the November 2018 Opinion Letter and 2019 revised FOH, applies to this case. Applying that interpretation, Defendant argues that because the tasks that Plaintiff was required to perform as a server at Johnny's all appear on O*NET, the amount of time she spent performing tip-producing versus non-tip-producing tasks is irrelevant. Therefore, according to Defendant, Plaintiff cannot prevail on her FLSA claim. Plaintiff disagrees that the new interpretation applies. She argues the DOL's new interpretation is not entitled to deference and the 80/20 Rule remains the applicable law in this circuit. [ECF No. 119 at 18]. The Court need not resolve this dispute because, even under the 80/20 Rule, Plaintiff has failed to offer sufficient evidence to survive Defendant's Motion for Summary Judgment. Thus, the Court assumes without deciding that the 80/20 Rule applies to Plaintiff's claim.
B. Plaintiff's Burden
Generally, when an employee brings suit for unpaid minimum wages, he or she "has the burden of proving that he [or she] performed work for which he [or she] was not properly compensated." Fast , 638 F.3d at 881 (quoting Anderson v. Mt. Clemens Pottery Co. , 328 U.S. 680, 686–87, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946) ). Employers subject to the FLSA are required to "make, keep, and preserve such records of the persons employed by him [or her] and of the wages, hours, and other conditions and practices of employment maintained by him [or her]." 29 U.S.C. § 211(c). "If an employer has failed to keep records, employees are not denied recovery under the FLSA simply because they cannot prove the precise extent of their uncompensated work." Holaway v. Stratasys, Inc. , 771 F.3d 1057, 1059 (8th Cir. 2014). "Rather, ‘employees are to be awarded compensation based on the most accurate basis possible.’ " Id. (citation omitted). When this standard applies, "once the employee has shown work performed for which [he or she] was not compensated, and ‘sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference,’ the burden then shifts to the employer to produce evidence to dispute the reasonableness of the inference." Carmody v. Kan. City Bd. of Police Comm'rs , 713 F.3d 401, 406 (8th Cir. 2013) (citation omitted).
To survive a motion for summary judgment, a plaintiff must trigger the burden shifting under this relaxed standard. As is relevant in this case, he or she must therefore provide enough evidence to show the amount and extent of his or her uncompensated work (or, here, improperly compensated work) as a matter of just and reasonable inference. See Holaway , 771 F.3d at 1060 (affirming grant of summary judgment in an FLSA unpaid overtime case where the plaintiff "failed to come forward with ‘sufficient evidence to show the amount and extent of [overtime] work’ which would allow a fact-finder to find overtime hours ‘as a matter of just and reasonable inference’ " (alteration in original) (citation omitted)); Shaunpen Zhou v. Int'l. Bus. Machs. Corp. , No. 15-cv-1027-LRR, 2017 WL 1217195, at *21 (N.D. Iowa Mar. 31, 2017) (finding grant of summary judgment for the defendant to be appropriate where the plaintiff could not "demonstrate the amount of uncompensated work as a matter of just and reasonable inference"); Pena v. Kindler , 187 F. Supp. 3d 1070, 1079 (D. Minn. 2016) (granting summary judgment to defendant where the plaintiff "provided no evidence, other than his own vague testimony," which was insufficient to "allow a fact-finder to find overtime hours as a matter of just and reasonable inference" (citation omitted)). Once the plaintiff has satisfied his or her burden, the ultimate determination of the plaintiff's damages is a fact question unbefitting resolution by summary judgment. See Neil v. White Commc'ns, L.L.C. , No. 4:16-cv-00349, 2017 WL 6997895, at *4 (S.D. Iowa Sept. 18, 2017) (denying summary judgment in an unpaid overtime case where the plaintiff provided detailed reasoning and documentation to support her estimate of sixty-three hours worked per week, and noting there was a "genuine factual dispute" as to whether the documentation in fact showed the plaintiff worked the hours alleged).
The cases cited in this paragraph involve claims for unpaid overtime under the FLSA. Obviously, what a plaintiff must show to establish the amount and extent of unpaid overtime as a matter of just and reasonable inference will differ from what a plaintiff must show to prove the amount and extent to which he or she spent more than twenty percent of his or her time on non-tipped work related to a tipped occupation. But these authorities establish that, whatever evidence is necessary to show the amount of improperly compensated work by just and reasonable inference, a plaintiff must offer that evidence to survive a motion for summary judgment.
It is undisputed that Defendant failed to keep complete and accurate records of the tasks Plaintiff performed as a server and the time she spent performing them; and, indeed, Plaintiff relies on the resulting relaxed standard to satisfy her evidentiary burden. However, even viewing the evidence in the light most favorable to Plaintiff under this relaxed standard, she has not established the amount and extent of her improperly compensated work as a matter of just and reasonable inference. Plaintiff has not offered an estimate of how much time she spent performing non-tip-producing tasks related to her role as a server. She estimated she spent ninety minutes to two hours per shift on "back of the house" side work, but that excludes various other tasks categorized as "running side work." [ECF No. 115 ¶¶ 39–40]. However, focusing on this "back of house" estimate, Plaintiff never explains how that estimate was reached. See Holaway , 771 F.3d at 1060 (finding the plaintiff failed to satisfy his relaxed evidentiary burden in part because he "failed to provide a meaningful explanation of how he arrived at his final estimate of sixty hours a week, every week, of his employment"). Nor can such an estimate—or a broader estimate of all time spent on non-tip-producing tasks—be reasonably drawn from the record.
Plaintiff has submitted a list, maintained by Johnny's, showing all the possible tasks a server might be assigned during a shift. [ECF No. 116 at 3–11]. She also explained during her deposition what many of those tasks entailed. See [ECF No. 108-3 at 9–12]. And while the tasks are numerous, the evidence also shows no individual server was required to complete them all. On the list, side work is divided into categories—e.g., "POS [Point of Sale] STATION," "PASTA SPOONS/SALAD TONGS," "ICED TEA AND COFFEE," etc. [ECF No. 116 at 4, 6]. Within those categories are specific tasks. For example, under "PASTA SPOONS/SALAD TONGS," are the tasks: "[c]heck frequently in dish area and polish spoons before putting away"; "[c]hange the caddy for spoons on the line"; and "[r]efill napkins and crackers on the line." Id. at 4. The list states that "[o]nly closers are allowed to assign sidework." Id.
During her deposition, Plaintiff testified that the side work to which a server was assigned varied depending on when they were released from their shift. [ECF No. 124-2 at 6]. For example, the first server "cut" would be assigned the first three categories of side work, and servers cut later would receive tasks further down on the list. Id. But Plaintiff does not indicate when she was typically cut or what tasks she typically had to complete. Complicating matters, she also states she was assigned side work that did not correspond with when she was released from her shift. See id. (Plaintiff testifying "there [were] several times" she was released first but was not assigned side work at the beginning of the list).
Some tasks are specifically assigned to opening and closing servers. See id. at 3, 10–11. The list for opening servers is lengthy and includes sixteen discrete tasks. See id. at 3. Plaintiff testified in her deposition that when she was an opening server, she would arrive at Johnny's thirty minutes to one hour before her shift. [ECF No. 124-2 at 5]. But there are numerous uncertainties that prevent a fact finder from inferring how often Plaintiff worked such blocks of time. Plaintiff was only an opening server on Saturdays and Sundays, but she was not the opening server on every weekend shift. [ECF Nos. 115 ¶ 19; 115-2 at 12]. And Plaintiff could not specify how frequently she was an opening server. [ECF No. 108-3 at 19]. Additionally, her weekend shifts were "usually all day" shifts, [ECF No. 115-2 at 12], but the record does not indicate how long such shifts lasted. Thus, a fact finder could not reasonably infer how frequently Plaintiff was an opening server or whether her opening tasks took up twenty percent of her shift. Similarly, Plaintiff did not specify how frequently she was a closing server or how long it took her to complete the various tasks assigned to the closer. Even if a fact finder could determine by just and reasonable inference how often Plaintiff was required to complete which tasks, it could not determine the time it took Plaintiff to complete them (individually or cumulatively). Plaintiff never tracked her side work. [ECF No. 108-3 at 9]. During her deposition she testified she could not identify the percentage of her day at Johnny's she spent traveling to and from customers; cutting lemons; taking orders; filling salt and pepper shakers; cleaning and breaking down the soda fountain; operating the point of sale station; setting tables; carrying food; making coffee; bussing tables; or chatting with co-workers. Id. at 13–18. Generally, she could not do so because the amount of time it would take to complete such tasks would vary from shift to shift based on variables such as how many customers were in the restaurant, whether a busser was working, and what food and drinks customers ordered. See id. at 14–16. Clearly, Plaintiff's inability to describe how long it took her to complete such tasks hinders a fact finder's ability to draw inferences as to what extent her related, non-tipped tasks took up more than twenty percent of her working time.
A similar problem arises with respect to Plaintiff's work catering events at the Blank Park Zoo in Des Moines, Iowa. According to Plaintiff's testimony, servers were required to complete several hours' worth of tasks before and/or after those events. See [ECF No. 115-2 at 9–10]. However, Plaintiff does not indicate how frequently she worked such events. Thus, a fact finder could not determine the amount and extent of her underpaid compensation related to catering events by just and reasonable inference.
Yet, despite her inability during her deposition to quantify the time it took to complete such tasks, Plaintiff submitted in response to the instant motion an affidavit specifying the amount of time it took her to perform various other tasks while employed as a server at Johnny's. See [ECF No. 115-2 at 14–18]. She claims she was able to make these estimates after having "thought about the job duties" to which she was assigned at the restaurant. Id. at 15.
Because Plaintiff was careful not to address tasks for which she could not give estimates during her deposition, see [ECF No. 115-2 at 14–15], the affidavit does not constitute a strikable "sham" affidavit under Eighth Circuit law, see City of St. Joseph v. S.w. Bell Tel. , 439 F.3d 468, 476 (8th Cir. 2006) (noting that "when the affiant's affidavit does not actually contradict his [or her] earlier testimony, the district court should not strike the affidavit from the record").
But Plaintiff's estimates only exacerbate the difficulty of inferring the amount and extent of her improperly compensated work. Plaintiff claims her average shift at Johnny's lasted between five and seven hours. Id. at 17. Yet, if the Court excludes Plaintiff's estimates related to catering events, then the minimum cumulative amount of time to complete the tasks in the affidavit is seven hours and eleven minutes; the maximum cumulative time is nine hours and twenty-eight minutes. Plus, Plaintiff did not include in her affidavit time estimates for tasks about which she was questioned in her deposition. See id. at 14–15. Plaintiff's estimates are extraordinary. Given their scale, they do more to sow uncertainty about the time Plaintiff spent performing side work than they do to resolve such questions, and they contradict her broader estimate that she spent ninety minutes to two hours per shift on back-of-house side work. In addition to raising questions about the time it took Plaintiff to complete individual tasks, the estimates highlight the importance of being able to determine what side work Plaintiff was required to do and when. Plaintiff has not provided evidence that would allow a fact finder to resolve these ambiguities by just and reasonable inference. Accordingly, Defendant is entitled to summary judgment.
These represent the sums of the minimum and maximum times listed in paragraphs 13–38 and 41–50 of the affidavit. [ECF No. 115-2 at 15–17]. Where Plaintiff provided a single time estimate, rather than a range, the Court considered that single time as the minimum and maximum times for that task. Paragraph 19 contains estimates for two different tasks (rolling silverware and, separately, polishing it). The Court included the 5-to-10-minute range in paragraph 29 twice in its calculations because Plaintiff states she performed that task (organizing glasses and washing the glass cart) both at the beginning and end of a shift.
To the extent Plaintiff also seeks compensation for unpaid minimum wage for tasks unrelated to her tipped occupation, such claims fail for the same reasons as her 80/20 claim. Even if the Court determined some of the tasks she performed were unrelated to her job as a server, there is no evidence by which a fact finder could reasonably infer how long such tasks took to complete or how frequently Plaintiff was required to complete them.
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment, [ECF No. 108], is GRANTED. The Clerk of Court is DIRECTED to enter Judgment in favor of Defendant and close this matter.
IT IS SO ORDERED.