Zellagui v. MCD Pizza, Inc.

59 F. Supp. 3d 712, 2014 U.S. Dist. LEXIS 161785, 2014 WL 5934113
CourtDistrict Court, E.D. Pennsylvania
DecidedNovember 13, 2014
DocketCase No. 2:14-CV-01475-JHS
StatusPublished
Cited by14 cases

This text of 59 F. Supp. 3d 712 (Zellagui v. MCD Pizza, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zellagui v. MCD Pizza, Inc., 59 F. Supp. 3d 712, 2014 U.S. Dist. LEXIS 161785, 2014 WL 5934113 (E.D. Pa. 2014).

Opinion

ORDER

JOEL H. SLOMSKY, District Judge.

Defendants MCD Pizza, Inc. and Serah Enterprises, Inc. (“Defendants” or “Domino’s”) have owned and operated approximately ten Domino’s Pizza stores in Pennsylvania since 2010. Cmplt. ¶ 9 (Doc. No. 1); Zellagui Decl. ¶ 3 (Doc. No. 8). Domino’s accommodates its customers’ delivery requests by hiring drivers to transport food and drink orders from its stores to customers’ homes. Cmplt. ¶ 11. Defendants employ an average of fifteen delivery drivers in each of their ten stores at any given time. Zellagui Decl. ¶ 3. Plaintiff was one such delivery driver. Cmplt. ¶ 4.

From December 2010 to June 2013, Plaintiff worked at several of Defendants’ locations. Id.; Zellagui Decl. ¶ 4. Like all of Defendants’ delivery drivers, Plaintiff was scheduled to work nine-hour shifts. Zellagui Decl. ¶ 6; Cmplt. ¶ 14. However, Plaintiff and the Class members routinely worked two extra hours past the end of each shift to complete extra work like cleaning the store, putting away food and equipment and preparing the store for the next shift. Zellagui Decl. ¶¶ 6-9; Cmplt. ¶ 34. As a result, Plaintiff and the Class members worked an average of 11 hours per day. Id.

On a typical shift, Plaintiff and the Class members spent four hours in the store performing non-tipped work and seven hours on the road making deliveries for which they were eligible to receive tips. Zellagui Decl. ¶ 10; Cmplt. ¶ 15.

At all times, Defendants paid Plaintiff and the Class members $6.00 per hour, regardless of whether they were performing tipped work or working overtime hours. Zellagui Decl. ¶ 15; Cmplt. ¶¶ 1, 4, 18, 31, 36, 43, 67. While out on the road, Plaintiff and the Class members were also paid a supplemental wage of $1.00 per delivery. Zellagui Decl. ¶ 15; Cmplt. ¶ 31.

As a result, Plaintiff alleges that he and the Class members were: (1) paid less than the minimum wage for their non-tipped, in-store work; (2) under-reimbursed for their vehicle expenses while making deliveries, thereby bringing their hourly wages below the applicable tipped minimum; and (3) not paid one and one-half times the mandatory minimum for any of their overtime hours.

Because Defendants failed to appear, plead, or otherwise defend the action, Default was entered against them on May 1, 2014. All well-plead factual allegations in the Complaint, except those relating to damages, are therefore accepted as true. See Eastern Elec. Corp. of N.J. v. Shoemaker Const. Co., 657 F.Supp.2d 545, 552 (E.D.Pa.2009); Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir.1990).

To determine the amount of damages, the Court may conduct a hearing and accept affidavits from the plaintiff. Schwartzman v. Rogue Int’l Talent Group, Inc., No. 12-5255, 2013 WL 5948028, at *4 (E.D.Pa. Nov. 7, 2013) (citing Eastern Elec. Corp. of N.J., 657 F.Supp.2d at 552). “The damage calculation need only be reasonable; it need not meet a standard of mathematical certainty.” Id. Here, most of the factual allegations regarding liability are coextensive with those regarding damages. See Hanna v. CFL Pizza, LLC, No. 11-1837, 2012 WL 515875, at *5 (M.D.Fla. Jan. 30, 2012) (in a similar pizza delivery driver case, finding “the under-reimbursement issue ... not much more than a simple mathematical équation”), report [715]*715and recommendation adopted, 2012 WL 513017 (M.D.Fla. Feb. 16, 2012).

Additionally, in calculating damages, a three-year statutory period applies. See Walker v. Washbasket Wash & Dry, No. 99-4878, 2001 WL 770804, at *12 (E.D.Pa. July 5, 2001) (“The statute of limitations for claims arising under the ... MWA is three years”) (citing 43 P.S. § 260.9a(g)).

Non-Tipped, In-Store Work

When employees perform both tipped and non-tipped work, employers must pay the full minimum wage for all hours that their employees spend performing non-tipped tasks. See, e.g., Driver v. AppleIllinois, LLC, 890 F.Supp.2d 1008, 1031, 1037 (N.D.Ill.2012) (granting summary judgment under Illinois Minimum Wage Law to class of employees who were paid less than the minimum wage while performing non-tipped functions).

Plaintiff claims that Defendants violated the Pennsylvania Minimum Wage Law (“MWA”) by failing to pay their delivery drivers at least $7.25 per hour for any of the hours they spent performing non-tipped tasks in the store. Zellagui Decl. ¶ 15; ¶¶ 62-73.

Plaintiff alleges that, during a typical eleven-hour work day, he and the Class members spent approximately four hours performing non-tipped work in the store. Cmplt. ¶¶ 14-15, 18; Zellagui Decl. ¶ 10. Plaintiff further alleges that he and the Class members were always paid $6.00 per hour for their non-tipped work. Cmplt. ¶¶ 14-20, 62-73; Zellagui Decl. ¶ 15. Pennsylvania’s minimum wage rate has been $7.25 per hour throughout the relevant period. Taking these factual allegations as true, Plaintiff has stated a prima facie minimum wage violation based on Defendants’ failure to provide proper wages for un-tipped, in-store work.

The amount of damages owed on this claim is readily ascertainable from the evi-dentiary record. Defendants paid Plaintiff $1.25 per hour less than the applicable minimum wage. Because the statutory period extends back three years from the date of the Complaint, the damages on this claim are as follows:

Hourly Rate Per Shift (4 hours) Per Week (5 shifts) 191 Weeks1

Paid_:_$6.00 $24.00 $120,00 $22,920,00

Minimum_$7.25 $29.00_$145.00 $27,695.00

Difference_($1.25) ($5.00)_($25.00) '($4,775.00)

Total for Class (150 members)_($716,250.00)

Thus, the total damages owed on Plaintiffs under-reimbursement claim is $716,250.00.

Tipped Deliveries

Employers are required to reimburse hourly-paid employees who.drive for work to cover the vehicle-related expenses they incur so their hourly wages do not fall below the minimum when those expenses are taken into account. See, e.g., Perrin v. Papa John’s Int’l, Inc., 818 F.Supp.2d 1146 (E.D.Mo.2011) (denying motion to dismiss delivery drivers’ FLSA and state law under-reimbursement claims); Darrow v. WKRP Mgmt., LLC, No. 09-01613, 2011 WL 2174496 (D.Colo. June 3, 2011) (same); [716]*716Smith v. Pizza Hut, Inc., No. 09-01632, 2011 WL 2791331 (D.Colo. July 14, 2011) (same); Hanna v. CFL Pizza, LLC, No. 05-2011-CA-52949 (Fla. Cir. Ct. Escambia Cnty.2009) (same); Barkley v. Pizza Hut, Inc., No. 14-00376, Doc. No. 73 (M.D.Fla. Sept. 2, 2014) (after losing motion to compel arbitration, defendant pizza company chose to answer rather than move to dismiss when delivery drivers who did not sign arbitration agreements brought under-reimbursement claims similar to those at issue here).

Each year, the Internal Revenue Service (“IRS”) calculates and publishes a standard mileage reimbursement rate for businesses and employees to use in computing the minimum deductible costs of operating an automobile for business purposes. Class Cert. Mot., Ex. A (Doc. No. 8). “The IRS figure is a national average of the cost of operating a motor vehicle.” Gattuso v. Harte-Hanks Shoppers, Inc., 42 Cal.4th 554, 565, 67 Cal.Rptr.3d 468, 169 P.3d 889 (2007).

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59 F. Supp. 3d 712, 2014 U.S. Dist. LEXIS 161785, 2014 WL 5934113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zellagui-v-mcd-pizza-inc-paed-2014.