United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR
PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT
GERSHWIN A. DRAIN UNITED STATES DISTRICT COURT JUDGE
before the Court is Plaintiff's complaint against
Defendant, alleging violations of the Federal Labor Standards
Act (FLSA) and the Michigan Minimum Wage Law. Pending before
the Court is Defendants' Motion for Summary Judgment and
Plaintiff's Motion for Partial Summary Judgment. Dkt.
Nos. 89, 90. Defendants argue that there is no genuine
dispute of fact that they paid their delivery drivers the
minimum wage rate or higher. Plaintiffs move for summary
judgment on two issues. First, Plaintiff argues that
Defendant Kevin Dittrich is an employer of delivery drivers.
Second, Plaintiff argues that Defendants may not use tips to
reimburse vehicle expenses. For the reasons discussed below,
the Court will deny Defendants' Motion for Summary
Judgment and grant Plaintiff's Motion for Partial Summary
case involves a chain of three Hungry Howie's franchises
located in Haslett, Perry, and St. Johns, Michigan. Dkt. No.
75, pg. 5 (Pg. ID 1597). Plaintiff was a delivery driver at
the Perry location from July 2015 to September 1, 2016.
Id. at pg. 4 (Pg. ID 1596). Defendants required
delivery drivers at each location to use their personal
vehicles to make pizza deliveries. Id. at pg. 6 (Pg.
ID 1598). Defendants paid delivery drivers a cash wage of
$5.00 per hour when they were making deliveries. Dkt. No.
93-4, pg. 2 (Pg. ID 2170). Defendants paid delivery drivers a
run charge of $.75 per delivery, and Perry drivers received
$1.75 for deliveries to Lainsburg, Michigan. Dkt. No. 93-2,
pg. 3 (Pg. ID 2157). Delivery drivers also received tips. In
all store locations, Defendants posted a “Minimum Wage
Notice to Tipped Employees.” Dkt. No. 93-9, pg. 1 (Pg.
ID 2193). This notice stated that Defendants would take a tip
credit that was exactly the difference between the
drivers' cash wage and the Michigan minimum wage.
Id. In other words, Defendants would only take just
enough tip credit to get their delivery drivers' salary
to the exact minimum wage.
6, 2016, Plaintiff filed a class action complaint against
Defendants. Dkt. No. 1. Plaintiff filed his First Amended
Complaint on September 19, 2017. Dkt. 75. Plaintiff alleges
that throughout his time as a delivery driver at the Perry
franchise, Defendants paid him and similarly situated drivers
the exact Michigan minimum wage. Id. Plaintiff also
alleges that Defendants did not adequately reimburse him and
other drivers for vehicle expenses incurred while delivering
pizzas for Defendant. Id. at pg. 6 (Pg. ID 1598).
Therefore, Defendants actually paid Plaintiff and similarly
situated drivers below the federal and Michigan minimum
wages. Id. at pg. 15, 18 (Pg. ID 1607, 1610).
Defendants deny these allegations. On October 5, 2017, this
Court certified Plaintiff's class. Dkt. No. 83.
December 29, 2017, Plaintiff filed a Motion for Partial
Summary Judgment. Dkt. No. 89. Defendants conceded summary
judgment in favor of Plaintiff on the issue of Defendant
Dittrich's status as an employer of Plaintiff and other
delivery drivers. Dkt. No. 93, pg. 11 (Pg. ID 2134).
Defendants opposed Plaintiff's Motion on the issue of
Defendants' application of the tip credit. Id.
Plaintiff replied on February 2, 2018. Dkt. No. 95.
Defendants filed a Motion for Summary Judgment on January 1,
2018. Dkt. No. 90. Plaintiff opposed the Motion on January
23, 2018. Dkt. No. 94. Defendants replied on February 6,
2018. Dkt. No. 96.
Rule of Civil Procedure 56(c) governs summary judgment. The
Rule states, “summary judgment shall be granted if
‘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.'” Cehrs v. Ne. Ohio Alzheimer's
Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998).
“All factual inferences ‘must be viewed in the
light most favorable to the party opposing the
motion.'” Id. (quoting Matsushita
Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)). There is a genuine issue of material fact
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)). Ultimately, the court evaluates
“whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Anderson, 477 U.S. at 251-52.
Plaintiff's and Defendants' Motions contain
overlapping issues. The most significant overlapping issue
concerns the proper application of the tip credit. Therefore,
this Court will discuss Plaintiff's Motion for Partial
Summary Judgment first and apply any overlapping analysis to
Defendants' Motion for Summary Judgment.
Plaintiff's Motion for Partial Summary Judgment
Kevin Dittrich's Employer Status
Plaintiff moves for summary judgment on Defendant Kevin
Dittrich's status as an employer of Plaintiff and
similarly situated delivery drivers. Dkt. No. 89, pg. 7 (Pg.
ID 1851). Defendants have never contested this issue. Dkt.
No. 93, pg. 11 (Pg. ID 2134). Both Plaintiff and Defendants
concur that Mr. Dittrich is an employer of Plaintiff and
other delivery drivers within the meaning of the FLSA. This
Court therefore holds that there is no genuine dispute about