Andrea Ide v. Neighborhood Restaurant Partners, LLC, et al

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11820
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D.C. Docket No. 1:13-cv-00509-MHC
ANDREA IDE,
on behalf of herself and all other persons
similarly situated, known and unknown,
Plaintiff - Appellant,
versus
NEIGHBORHOOD RESTAURANT PARTNERS, LLC,
APPLE CREEK MANAGEMENT CO., INC.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 1, 2016)
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Before WILSON, WILLIAM PRYOR, and GILMAN,* Circuit Judges.
PER CURIAM:
Andrea Ide filed suit against Apple Creek Management Company, Inc. and
Neighborhood Restaurant Partners, LLC (collectively, the Defendants) on behalf of
herself and similarly situated tipped employees of the Defendants “for Defendants’
failure to pay [those servers, bartenders, and hosts] earned minimum wages.” Ide
argued, in relevant part, that (1) the Defendants should bear the burden of proving
that the Defendants were entitled to take the “tip credit” under Section 3(m) of the
Fair Labor Standards Act (FLSA), 29 U.S.C. § 203(m), and (2) Ide and similarly
situated tipped employees should not have been paid at the tip-credit wage rate for
performing duties of non-tipped occupations unrelated to their tipped occupations.
The district court denied Ide’s motion for conditional certification of a collective
action under the FLSA and subsequently granted summary judgment to the
Defendants. Ide appeals both rulings.
After thorough review of the record and the parties’ briefs, and having had
the benefit of oral argument, we find insufficient evidence in the record that Ide
performed duties unrelated to her tipped occupation for which she was not properly
compensated, irrespective of who bore the burden of proof. See 29 U.S.C. §§
203(m), (t), 206(a)(1); 29 C.F.R. § 531.56(e); see also Fast v. Applebee’s Int’l,
* Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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Inc., 638 F.3d 872, 876–79 (8th Cir. 2011). Thus, Ide’s arguments regarding
conditional certification under 29 U.S.C. § 216(b) are moot. Accordingly, we
affirm.
AFFIRMED.
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