PITTSBURGH – A food service company has removed to federal court and flatly denied class action claims that waiters in its employ were shortchanged out of mandated wages, in violation of both state and federal laws.
Paris Cooks (on behalf of himself and all others similarly-situated) of Allentown first filed suit in the Allegheny County Court of Common Pleas on Sept. 12 versus Ovation Food Services, LP (doing business as “Spectra Food Services & Hospitality”), of Philadelphia.
“Defendant, Ovations Food Services LP (doing business as “Spectra Food Services & Hospitality”) is a food and beverage hospitality company that is headquartered in Philadelphia, Pennsylvania, and owns, operates and/or manages multiple dining locations throughout the Commonwealth of Pennsylvania and the United States. Defendant employs servers at these dining locations and compensates these servers with a sub-minimum wage for the hours they work,” the suit said.
“Plaintiff brings this class and collective action under the Fair Labor Standards Act (FLSA) and the Pennsylvania Minimum Wage Act (PMWA), on behalf of himself and all servers who work or have worked for defendant during the applicable three-year statute of limitations.”
The suit added that the defendant violated the above-mentioned federal and state laws, leaving their servers without funds that should have been due them.
“Defendant committed federal and state minimum wage violations, because it failed to provide servers with statutorily required tip notice and further required servers to spend an impermissible amount of their shifts performing non-tipped work that did not require the servers to have customer interaction,” the suit stated.
“Defendant further committed federal and state overtime wage violations, because it failed to compensate servers at the appropriate federal and state overtime rates, when servers worked in excess of 40 hours in a workweek. As a result, plaintiff and all similarly-situated servers have been denied federal and state minimum and overtime wages and tips, during various workweeks within the relevant time period.”
According to the suit, anyone who worked as a server for the defendant within the past three years, was paid a sub-minimum wage and required to perform more than 40 hours of work in a single workweek within the past three years, would be eligible to join the class.
UPDATE
On Oct. 26, the defendant removed the action to the U.S. District Court for the Western District of Pennsylvania, pointing to the counts listed under the Fair Labor Standards Act, which would be a question of federal jurisdiction.
The defendant then filed an answer in the case on Nov. 2, which denied the plaintiff’s allegations in their entirety and supplied eight affirmative defenses on its own behalf.
“Cooks has not suffered any legally cognizable damage. Cooks’ claims are barred by the doctrine of accord and satisfaction. Cooks’ claims are barred by the doctrines of laches, waiver, estoppel and unclean hands. Any claim for liquidated damages under the FLSA, as amended, 29 U.S.C. Section 216, is barred under the Portal-to-Portal Act of 1947, as Ovations was at all times acting in good faith and had reasonable grounds for believing that their actions were not in violation of the FLSA. Cooks’ request for collective treatment should be denied in that Cooks and the members of the putative collectives are not similarly situated and therefore, Cooks cannot meet the requirements for collective treatment pursuant to Section 216(b) of the FLSA. Cooks’ attempt to pursue his claims as a collective or class action fail because an independent and individual analysis of the claims of each plaintiff, opt-in plaintiff, and putative class member, and each of Ovations’ respective defenses, is required,” the defenses stated.
“This action may not be properly maintained as a class action because Cooks has failed to plead and cannot establish the necessary procedural elements for class treatment, a class action is not an appropriate method for fair and efficient adjudication of the claims described in the complaint, common issues of fact or law do not predominate, individual issues of fact or law predominate, Cooks’ claims are not representative or typical of the claims of the putative classes, Cooks is not an adequate representative for the putative classes, the putative classes are insufficiently numerous, and there is not a well-defined or actual community of interest in the questions of law or fact affecting Cooks and the members of the putative classes. Cooks’ proposed class and collective definitions are vague and overbroad.”
For counts of federal minimum wage violations, state minimum wage violations, federal overtime wage violations and state overtime wage violations, the plaintiff is seeking unliquidated federal and state minimum wage damages, the tip credit unlawfully claimed by defendant, liquidated damages, reasonable attorneys’ fees and litigation costs, and any and all such further relief as this Court deems just and reasonable under the circumstances.
The plaintiff is represented by Tyler S. Setcavage and Matthew T. Logue of Quinn Logue in Pittsburgh, plus Jordan Richards and Michael V. Miller of USA Employment Lawyers, in Fort Lauderdale, Fla.
The defendant is represented by Daniel Frederick Thornton, Stephanie J. Peet and Marla N. Presley of Jackson Lewis, in Philadelphia and Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:23-cv-01858
Allegheny County Court of Common Pleas case GD-23-010599
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com