Green et al v. Perry's Restaurants LTD et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 21-cv-0023-WJM-NRN
LANCE GREEN, and
ANDERSON KHALID, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
PERRY’S RESTAURANTS LTD, and
PERRY’S STEAKHOUSE OF COLORADO, LLC, collectively d/b/a PERRY’S
STEAKHOUSE AND GRILLE,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
Before the Court is Plaintiffs’ Motion for Partial Summary Judgment (“Motion”).
(ECF Nos. 209–212). Defendants Perry’s Restaurants LTD (“PRL”) and Perry’s
Steakhouse of Colorado, LLC (“PSC”) (together, “Defendants”) filed a response (ECF
No. 218), to which Plaintiffs filed a reply (ECF Nos. 221–222.)
For the reasons set forth below, the Motion is granted in part and denied part.
I. BACKGROUND1
Perry’s Steakhouse and Grille (“Perry’s”) is an upscale steakhouse with multiple
1 This Background is derived from the parties’ briefs on the Motions and documents
submitted in support thereof. The facts set forth herein are undisputed unless attributed to a
party or source. All citations to docketed materials are to the page number in the CM/ECF
header, which sometimes differs from a document’s internal pagination.
The Court also notes at the outset that Defendants submitted their summary judgment
evidence as a single, 2,137-page appendix. (See ECF No. 218-1.) Though the pages of the
appendix are consecutively numbered, Defendants did not pin cite those page numbers in their
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locations throughout the United States, including, as pertinent to this lawsuit, locations
in Colorado, North Carolina, Alabama, and Florida (collectively, the “Four Locations”).
(ECF No. 209 at 5 ¶ 1; ECF No. 218 at 7 ¶ 1.) PRL, a Texas entity, is the parent
company of several subsidiary LLCs that directly own the Four Locations—namely,
PSC; Perry’s Steakhouse of North Carolina, LLC (“PSNC”); Perry’s Steakhouse of
Alabama, LLC (“PSA”); and Perry’s Steakhouse of Florida, LLC (“PSF”). (ECF No. 161-
2 at 2.) The parties dispute the extent to which PRL is involved in the operations of the
Four Locations. (ECF No. 218 at 17 ¶ 59; ECF No. 221 at 4 ¶ 59.)
Plaintiffs are individuals who worked as servers at one of the Four Locations in at
least one week since January 5, 2018, and who were paid a direct cash subminimum
hourly wage during some or all of their employment.2 (ECF No. 209 at 6–7 ¶¶ 4–5; see
also ECF No. 205 at 2; ECF No. 242 at 5.) In this lawsuit, Plaintiffs assert claims
against Defendants for various alleged violations of the Fair Labor Standards Act, 29
U.S.C. § 201, et seq. (“FLSA”); the Colorado Wage Claim Act, Colo. Rev. Stat. § 8-4-
101, et seq. (“CWCA”); and the Colorado Overtime and Minimum Pay Standards Order
response brief, instead directing the Court to, e.g., “App. Ex. 6, p. 2–3.” This approach has
made it exceedingly cumbersome for the Court to locate the specific excerpts to which
Defendants wish to direct its attention. To the extent the parties have occasion to file
voluminous exhibits in the future, they are instructed to separately append each exhibit to their
CM/ECF filing. Any subsequent failure to do so will result in the filing being summarily stricken
with instructions to re-file.
2 The parties agree that there are at least “[s]everal Plaintiffs [who] earned a direct wage
that was higher than $7.25 per hour at various times during the relevant time period, and thus
they may not recover damages under the FLSA for those weeks.” (ECF No. 221 at 6 ¶ 64; see
also ECF No. 218 at 18 ¶ 64.) Defendants further contend that “[s]everal Plaintiffs were always
paid a direct cash hourly wage above the FLSA $7.25 per hour standard while employed by a
Location.” (ECF No. 218 at 18 ¶ 64 (first emphasis added).) Given Plaintiffs’ offer to “meet and
confer with Defendants to identify the individuals who Defendant believes meet this criteria” so
that “their FLSA claims may be voluntarily withdrawn,” (ECF No. 221 at 27), the Court trusts the
parties will be able to resolve this issue before trial and will not further analyze this issue herein.
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#38, 7 CCR 1103-1 (“COMPS Order”) (together with the CWCA, the “Colorado Wage
Laws”). (ECF No. 235 at 2.) The instant Motion, however, primarily concerns just one
of these alleged violations: Defendants’ purported “illegal practice of using tip pool funds
. . . to pay the wages of workers who worked shifts when the restaurants were closed,
and no customers were present.” (ECF No. 209 at 3.)
Like all Perry’s servers, Plaintiffs were required to contribute 4.5% “of all sales
credited to or generated by [them]” to a mandatory tip pool. (ECF No. 209 at 7 ¶ 6; ECF
No. 218 at 8 ¶ 6; ECF No. 211-21.) The tip pool funds were paid out on a weekly basis
to other employees working at the same restaurant location in proportion to “the number
of hours [each employee] worked in that week” “while clocked in under a position . . .
designated as one that received tip pool distributions.” (ECF No. 209 at 7 ¶ 8; ECF No.
168-1 at 2–3 ¶¶ 4, 6.) Those “tip share job codes” specifically included hosts, food
runners, bussers, server assistants, bartenders, and service well bartenders. (ECF No.
209 at 7 ¶ 11.)
It is undisputed that, to at least some extent, “tip pool monies” were “distributed”
to employees in these designated tip share positions even when their shifts were, in
whole or in part, “before the advertised opening time of [the Four Locations].” (ECF No.
209 at 8 ¶¶ 12–13; ECF No. 218 at 9 ¶¶ 12–13, 41; see also ECF No. 210-1 at 61:21–
23 (defense counsel representing at discovery hearing before Magistrate Judge N. Reid
Neureiter that “[Defendants] would not dispute the fact that there’s some tip pool
recipients who were working at the restaurant before the restaurant opened for
guests”).)3 The current advertised opening and closing times at each of the Four
3 (See also, e.g., ECF No. 211-5 (Perry’s “Corporate Operations Specialist,” Howard
Cortes, clarifying that AM Hosts will “clock in under AM host and collect tipshare from your pm
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Locations are specifically as follows:
Location 	Sunday 	Mon – Thurs 	Friday 	Saturday
Colorado 	Open: 4:00 p.m.
Close: 9:00 p.m.
Open: 4:00 p.m.
Close: 10:00 p.m.
Open: 10:30 a.m.
Close: 10:00 p.m.
Open: 4:00 p.m.
Close 10:00 p.m.
Alabama 	Open: 4:00 p.m.
Close: 9:00 p.m.
Open: 4:00 p.m.
Close: 10:00 p.m.
Open: 10:30 a.m.
Close: 10:00 p.m.
Open: 4:00 p.m.
Close: 10:00 p.m.
Florida 	Open: 4:00 p.m.
Close: 9:00 p.m.
Open: 4:00 p.m.
Close: 10:00 p.m.
Open: 10:30 a.m.
Close: 11:00 p.m.
Open: 4:00 p.m.
Close: 11:00 p.m.
North
Carolina
Open: 4:00 p.m.
Close: 9:00 p.m.
Open: 4:00 p.m.
Close: 9:00 p.m.
Open: 10:30 a.m.
Close: 10:00 p.m.
Open: 4:00 p.m.
Close: 10:00 p.m.
(ECF No. 209 at 6 ¶¶ 2–3; ECF No. 218 at 7 ¶¶ 2–3; ECF No. 218 at 18 ¶ 61; ECF No.
221 at 5 ¶ 61.)4 Based on their analysis of the time records Defendants have produced
thus far, Plaintiffs submit that there are more than 3,400 instances where an employee
clocked-in under a tip share job code before 2:00 p.m. and clocked-out before 5:00 p.m.
on the same day, excluding all Friday and holiday shifts when the Four Locations
opened earlier for lunch. (ECF No. 211-24.)5
Plaintiffs explain that they chose the “clock-out time of 5:00 pm” for their analysis
shift”); ECF No. 211-14 (Perry’s “HR Payroll Manager,” Priscilla Ortiz, responding to question
about how “tip share works for our new AM Busser position . . . because there is no AM tip
share collected” and suggesting to “pull the AM hours from the spreadsheet and enter them into
the PM column for that employee”).)
4 In 2020, the Four Locations temporarily closed and re-opened with adjusted advertised
opening times to align with local restrictions and/or staff limitations due to the COVID-19
pandemic. (ECF No. 218 at 18 ¶ 60.) In addition, the North Carolina location did not open until
September 2020. (ECF No. 218 at 19 ¶ 68.) With these exceptions, the Court presumes that
the opening and closing times summarized in the table above were consistent for each of the
Four Locations throughout the relevant time period.
55 Plaintiffs offer this evidence through the declaration of Muskan Garg, a “Data Analyst,”
employed by Plaintiffs’ counsel’s law firm. (ECF No. 211-24 at ¶ 1.) Defendants object to
Garg’s declaration under Fed. R. Evid. 702, Fed. R. Civ. P. 37(c)(1), and on the basis of
prejudice. (ECF No. 218 at 34–35.) These objections are inapt. Plaintiffs are proffering Garg’s
declaration and the list appended thereto as a Rule 1006 summary derived from Perry’s own
data produced in this litigation, and the Court discerns no reason it may not be appropriately
considered as such. (ECF No. 221 at 25.) To the extent Defendants’ believe Garg’s declaration
is overinclusive for damages purposes, they will have an opportunity to explore that on cross-
examination at trial. For the purposes of this Motion, however, Defendants’ objections are
overruled.
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“because Perry’s has produced documents showing that ‘Opening Bussers’ perform
cleaning and similar duties until 4:15 pm, and thus the morning shifts often end shortly
after the restaurant opens.” (Id. at ¶ 13.) “Opening Busser” (or “AM Busser”) tasks
specifically included the following:
(ECF No. 210-13 at 1; see also ECF No. 210-12 (Colorado Opening Busser Checklist);
ECF No. 210-14 (Florida Opening Busser Checklist); ECF No. 210-15 (North Carolina
Opening Busser Checklist).) Opening server assistants (“AM SAs”) had substantially
similarly tasks as the AM Bussers, at least per the deposition testimony of one Colorado
Plaintiff. (ECF No. 210-8 at 8 (testifying that his “opening server assistant work”
included “[p]olishing silverware, mopping the floors, building the tables for dinner, which
are all also jobs of the bussers and the food runners,” but “not necessarily resetting
tables because there are none”).)
Further still, “Opening Hosts” (or “AM Hosts”) appear to have been required to
complete their assigned tasks by 3:00 p.m.—an hour before the restaurant opened to
guests at 4:00 p.m. (ECF No. 211-4 (approving the scheduling of “AM Host shifts” from
either “12-3 pm” or “11-3 pm” everyday but Friday).) AM Hosts were specifically
assigned the following tasks:
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(ECF No. 211-2 at 1; see also ECF No. 211-4 (setting forth similar list of tasks).) The
summary evidence suggests that at least part of the motivation for adding AM Host
shifts was to reduce the administrative workload of managers. (ECF No. 211-6
(Alabama management identifying “a huge pile of bills and endless phone calls” as a
challenge she faces but adding that “[p]art of this has just been addressed with the
addition of an AM host”).)
Though these AM Employees substantially (or entirely) completed their shifts
before the Four Locations opened to guests, Defendants contend it is not always the
case that “no customers were present.” For instance, according to Defendants, “[o]f the
alleged 3,400 AM shifts, at least 140 shifts occurred while a private lunch party was
taking place at one of the Four Locations and thus customers were undoubtedly
present.” 	(ECF No. 218 at 21 ¶ 72.) They also note that one of the employees
identified by Plaintiffs “worked a double shift” “[o]n numerous occasions,” “interacting
with customers and providing service throughout the entire day.” (Id. at 18 ¶ 34.)
Notably, Plaintiffs have not yet verified whether tip share funds were used to pay
employee wages in connection with all 3,400 identified AM shifts. (ECF No. 218 at 11 ¶
20.) Nevertheless, Plaintiffs represent that, through a cross-check of the payroll records
Defendants have produced to date, they verified that tip share funds were used to pay
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employees for at least some of the 3,400 identified AM shifts. (ECF No. 211-24 at ¶¶
19–26; see also ECF No. 209 at ¶¶ 23, 31, 35, 36.)
Plaintiffs accordingly ask the Court to grant them partial summary judgment that
“Perry’s operated an unlawful tip pool in all weeks and at all locations in which AM shift
employees were paid using Plaintiffs’ tips from the tip pool.” (ECF No. 209 at 32.) If
granted, Plaintiffs state they would “then proceed to prove the full extent of their
minimum wage damages and the amount of tips they contributed to the unlawful tip
pool” at trial. (Id.)
II. LEGAL STANDARD
“A motion for summary judgment shall be granted ‘if 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.’” United States v. Dept. of Health & Environment, --- F.4th ---, 2025 WL
3762652, at *7 (10th Cir. 2025) (quoting Fed. R. Civ. P. 56(a)). “The movant bears the
initial burden of making a prima facie demonstration of the absence of a genuine issue
of material fact and entitlement to judgment as a matter of law.” Savant Homes, Inc. v.
Collins, 809 F.3d 1133, 1137 (10th Cir. 2016) (quotations omitted in original); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (similar). “A movant who does not
bear the burden of persuasion at trial may satisfy this burden by pointing out to the court
a lack of evidence on an essential element of the nonmovant’s claim.” Savant Homes,
809 F.3d at 1137 (quotations omitted in original). “The nonmovant must then bring forth
‘specific facts showing a genuine issue for trial.’” Thao v. Grady County Criminal
Justice Authority, 159 F.4th 1214, 1227 (10th Cir. 2025) (quoting Garrison v. Gambro,
Inc., 428 F.3d 933, 935 (10th Cir. 2005) (quotation marks omitted in original)). “These
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facts must be clearly identified through affidavits, deposition transcripts, or incorporated
exhibits—conclusory allegations alone cannot survive a motion for summary judgment.”
Thao, 159 F.4th at 1227.
“A fact is ‘material’ if, under the governing law, it could have an effect on the
outcome of the lawsuit.” E.E.O.C. v. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184,
1190 (10th Cir. 2000). “[T]he dispute about a material fact is ‘genuine’ . . . if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “At the summary judgment
stage, [courts] must ‘review the entire record’ in the light most favorable to the
nonmoving party.” Id. (quoting Seamons v. Snow, 206 F.3d 1021, 1026 (10th Cir.
2000)).
III. ANALYSIS
A. 	PRL’s Employer Status
As a threshold matter, the FLSA extends minimum wage protections to
“employees of covered employers.” Acosta v. Jani-King of Oklahoma, Inc., 905 F.3d
1156, 1159 (10th Cir. 2018) (citing 29 U.S.C. §§ 206(a), 207(a)). Thus, “[a]n employer-
employee relationship is a prerequisite to an FLSA claim.” Merrill v. Harris, 2022 WL
3696669, at *5 (10th Cir. Aug. 26, 2022).
The Court previously found that “no employment relationship exists between
PSC and Green or any other putative class member who was not directly employed by
PSC” and accordingly dismissed all claims against PSC “to the extent they are brought
by Green or any other class member who was not employed at PSC’s Colorado
location.” (ECF No. 59 at 9–11; see also ECF No. 221 at 26 (“Plaintiffs agree that
claims of non-Colorado Opt-in Plaintiffs against PSC are dismissed.”).) As a result, the
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only remaining issue is whether an employment relationship exists between the non-
Colorado Plaintiffs and PRL. Defendants oppose the Motion partly on the grounds that
the non-Colorado Plaintiffs have not established any such employment relationship
exists, making summary judgment on their FLSA claims improper. (ECF No. 218 at 26–
28.)6 Ultimately, the Court agrees with Defendants that issues of material fact preclude
summary judgment on the issue of PRL’s employer status—but just barely.
“Whether an entity is an employer within the meaning of the FLSA is a legal
question, with subsidiary findings considered issues of fact.” Sanders v. Glendale
Restaurant Concepts, LP, 2020 WL 5569786, at *3 (D. Colo. Sept. 17, 2020). The
FLSA defines an “employee” as “any individual employed by an employer.” 29 U.S.C. §
203(e)(1). “Employer” is in turn defined as “any person acting directly or indirectly in the
interest of an employer in relation to an employee . . . .” Id. § 203(d). And the FLSA
“‘defines the verb ‘employ’ expansively to mean ‘suffer or permit to work.’” Nationwide
Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992) (quoting id. § 203(g)). “The Supreme
Court has emphasized that the ‘striking breadth’ of this latter definition ‘stretches the
meaning of ‘employee’ to cover some parties who might not qualify as such under a
strict application of traditional agency law principles.’” Baker v. Flint Engineering &
Const. Co., 137 F.3d 1436, 1440 (10th Cir. 1998) (quoting Darden, 503 U.S. at 326).
As a result, “in determining whether an individual is covered by the FLSA, [the Court’s]
6 Defendants actually ask, in the first instance, that the Court dismiss the claims of the
non-Colorado Plaintiffs. (ECF No. 218 at 27–28.) A request for affirmative relief in response to
a motion is improper. See D.C.COLO.LCivR 7.1(d) (“A motion shall not be included in a
response or reply to the original motion. A motion shall be filed as a separate document.”). In
any case, as discussed below, Plaintiffs have marshalled more than enough evidence to create
a genuine issue of material fact regarding PRL’s employer status.
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inquiry is not limited by any contractual terminology or by traditional common law
concepts of ‘employee’ or ‘independent contractor.’” Baker, 137 F.3d at 1440 (internal
citation and quotation marks omitted). “Instead, the economic realities of the
relationship govern . . . .” Id.
The “focal point” of the economic realities test is “whether the individual is
economically dependent on the business to which he renders service, or is, as a matter
of economic fact, in business for himself.” Barlow v. C.R. England, Inc., 703 F.3d 497,
506 (10th Cir. 2012) (quoting Doty v. Elias, 733 F.2d 720, 722–23 (10th Cir. 1984))
(emphasis added in original). “[C]ourts generally look at (1) the degree of control
exerted by the alleged employer over the worker; (2) the worker’s opportunity for profit
or loss; (3) the worker’s investment in the business; (4) the permanence of the working
relationship; (5) the degree of skill required to perform the work; and (6) the extent to
which the work is an integral part of the alleged employer’s business.” Baker, 137 F.3d
at 1440. In addition, courts inquire “into whether the alleged employer has the power to
hire and fire employees, supervises and controls employee work schedules or
conditions of employment, determines the rate and method of payment, and maintains
employment records.” Id.; see also Inniss v. Rocky Mountain Inventory, Inc., 385 F.
Supp. 3d 1165, 1168 (D. Colo. 2019) (Martinez, J.) (same); Fuentes v. Compadres, Inc.,
2018 WL 1444209, at *5 (D. Colo. Mar. 23, 2018) (considering these four factors
specifically when “[a]pplying the economic realities test to joint employers”). “None of
the factors alone is dispositive; instead, the court must employ a totality-of-the-
circumstances approach.” Baker, 137 F.3d at 1440.
Turning to the summary judgment evidence at hand, Plaintiffs append e-mail
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communications which suggest that PRL’s approval is required to interview and/or
extend offers to candidates for open positions, including servers. (See, e.g., ECF No.
222-13 (seeking approval from David Freeman, PRL’s “Senior Vice President,
Operations,” to “[r]ehire” a candidate for a server position).) Moreover, with regard to
conditions of employment, Plaintiffs contend that PRL created the Employee Handbook
that is used at all Perry’s restaurant locations. (See ECF No. 172-1 at 1 (listing PRL on
the cover page, followed by each of its subsidiary companies); id. at 5 (defining “Perry’s”
and “the Company” as inclusive of PRL and subsidiary companies).) And Plaintiffs
further point out that PRL employs a “Director of Training,” who PRL’s Chief Operations
Officer, Richard Henderson, testified at his deposition was responsible for “[p]utting
together the documents . . . related to training of all positions,” including “side work duty
checklists.” (ECF 222-2 at 16.)
With respect to employee rate and method of payment, Plaintiffs contend that
PRL is responsible for setting the 4.5% tip share requirement at issue in this lawsuit, as
embodied in the Employee Handbook. (Id. at 18–19 (“The Company has set this tip
share amount as to servers at the current rate of 4.5% of sales per shift.”).) Plaintiffs’
evidence also suggests that PRL’s approval was required to effectuate any change in
employee pay. (See, e.g., ECF 222-12 (Senior General Manager at North Carolina
Location seeking Freeman’s approval of “Employee Payroll Action Sheets (EPAS)” “so
that we can streamline tipshare to 12.87 across the board starting next week”).) And
Plaintiffs correctly point out that some of Defendants’ own summary judgment evidence
supports PRL is responsible for maintaining personnel records. Specifically,
Defendants submit the declaration of Gary Gutierrez, PRL’s Director of Human
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Resources, in which he describes himself as the “custodian of records for the
documents and data described in and attached to this Declaration, which are payroll
and related personnel records . . . .” (ECF No. 218-1 at 13–14 ¶ 3.)
Defendants, for their part, proffer five declarations to refute PRL’s employer
status: one from Henderson (PRL’s COO); and one from a General Manager and/or
Senior General Manager at each of the Four Locations. (See generally ECF No. 218-
1.) Before examining these declarations, the Court makes the threshold observation
that much of Defendants’ argument and evidence centers on the level of control
allegedly exercised by PSC, PSA, PSF, and PSNC over the employees at the Four
Locations. (ECF No. 218 at 27.) However, the fact that Plaintiffs may have an
employee-employer relationship with the subsidiary entities that directly own each of the
Four Locations does not necessarily mean that Plaintiffs do not also have an employee-
employer relationship with PRL. “Separate persons or entities that share control over
an individual worker may be deemed joint employers under the FLSA.” Frost v.
Medicine Man Techs., Inc., 2025 WL 605259, at *8 (D. Colo. Feb. 25, 2025) (quoting
Barnett v. Vapor Maven OK 1, LLC, 2022 WL 16950273, at *2 (N.D. Okla. Nov. 15,
2022)), report and recommendation adopted Civil Action No. 1:23-cv-2607-GPG-TPO,
ECF No. 75. Thus, “[a]n employee may have more than one employer responsible for
the FLSA provisions.” Mason v. Miro Jewelers, Inc., 2020 WL 6828015, at *2 (D. Colo.
Mar. 17, 2020). Such “[j]oint employers are held, individually and jointly, to FLSA
compliance.” Frost, 2025 WL 605259, at *8 (emphasis added). Accordingly, if the
economic realities test is satisfied as to PRL, it is of no import that “the Alabama,
Florida, and North Carolina entities are notably absent as Defendants in this case.”
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(ECF No. 218 at 27.)
Nevertheless, Henderson states that “[t]he only action PRL has taken with
respect to the Four Locations is to submit, from Texas to a governmental agency in the
respective states of Colorado, Alabama, Florida, and North Carolina, appropriate
registration papers establishing the Four Locations as entities authorized to conduct
business in its state.” (Id. at 2 ¶ 9.) “From that moment,” he continues, “PSC, PSA,
PSF, and PSNC has each served as its own and only sole operator.” (Id.) Thus,
according to Henderson,
PRL is not the employer of any server who works at any of
the Four Locations . . . . PRL is not involved in any day-to-
day core operations of any of the Four Locations, does not
hire or fire any of their servers, does not train their servers,
does not oversee how their servers check out their sales and
tip calculations, does not control the work schedules or
assignments of their servers, does not control side work
assignments or other work assignments or any equivalent
job duties, does not participate in calculating tip share or tip
pool job distributions, and does not enforce any disciplinary
action or other day-to-day oversight of servers who work at
any of these Four Locations, whether pertaining to tip
pooling, tip sharing, side work, deductions for uniforms or
tools and equipment, or any other such matters.
(ECF No. 218-1 at 4 ¶ 4.) Each of the General Managers of the Four Locations in turn
generally corroborates in their declaration that they possess the supervisory authority
over the employees at their respective location that PRL purports to lack. (ECF No.
218-1 at 7–11, 2119–37.)
Though Plaintiffs have not raised any specific objection to these declarations, the
Court has some concern that the portions directed at refuting PRL’s employer status
represent little more than conclusory, lawyer-drafted language designed to manufacture
a genuine dispute of fact. The Court’s suspicion is partly attributable to the fact that
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relevant portions of the declarations are nearly, if not completely, identical, (compare,
e.g., 218-1 at 7 ¶ 5 with id. at 2120 ¶ 4 and id. at 2126 ¶ 5 and id. at 2133 ¶ 3), and
none are supported by corroborating documentary evidence.
But, as this Court has previously observed,
[t]he Tenth Circuit has stated that a court cannot necessarily
reject a declaration out-of-hand as “self-serving.” Vreeland
v. Schwartz, 2021 WL 2946465, at *5 (10th Cir. July 14,
2021). Rather, when a declaration is “based upon personal
knowledge and sets forth facts that would be admissible in
evidence, it is legally competent to oppose summary
judgment, irrespective of its self-serving nature.” Id. (quoting
Sanchez v. Vilsack, 695 F.3d 1174, 1180 n.4 (10th Cir.
2012) (brackets, citation, and internal quotation marks
omitted in Vreeland)). Moreover, the Tenth Circuit has found
that the mere fact that a declaration is “uncorrob[or]ated” is,
on its own, insufficient to grant summary judgment in a
[moving party’s] favor. Id. And on summary judgment, a
district court may not weigh the credibility of witnesses. Id.
(citing Fogarty v. Gallegos, 523 F.3d 1147, 1165 (10th Cir.
2008)).
Bocanegra v. Arepas House, LLC, 2023 WL 4297575, at *4 (D. Colo. June 30, 2023).
For similar reasons here, the Court concludes that the declarations contain just
enough factual content that it would be inappropriate to discount them as competent
summary judgment evidence. As a result, it necessarily also finds that the averments of
PRL’s COO and the General Managers refuting PRL’s degree of supervisory control
over the individual employees at the Four Locations is sufficient to create a genuine
dispute of fact—if only just so.
The Motion is thus denied to the extent Plaintiffs ask the Court to fully resolve the
issue of PRL’s liability under the FLSA, as PRL’s employer status remains a disputed
issue of fact to be resolved at trial.7
7 Intertwined with Defendants’ argument as to PRL’s alleged lack of employer status are
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B. 	Inclusion of AM Employees in the Tip Pool
The Court turns next to the primary merits issue raised by the Motion: that
Perry’s violated the tip credit by using “the tip pool to pay AM employees who were
working when the restaurant was closed, and no customers were present.” (ECF No.
209 at 20.)
Both the FLSA and Colorado Wage Laws include special provisions concerning
the payment of “[t]ipped employee[s]”—that is, “any employee engaged in an
occupation in which he customarily and regularly receives more than $30 a month in
tips.” 29 U.S.C. § 203(t); COMPS Order, 7 CCR 1103-1 at § 1.10. In particular, each
contains a “tip-credit provision” permitting employers to pay their tipped employees “a
cash wage of as little as $2.13 an hour,” under the FLSA, or $9.30 an hour, under the
Colorado Wage Laws, “and then use a portion of the employees’ tips to make up the
difference between the hourly cash wage and the [statutory] minimum wage.” Romero
v. Top-Tier Colo. LLC, 849 F.3d 1281, 1283-84 (10th Cir. 2017) (citing 29 U.S.C. §
203(m)); COMPS Order, 7 CCR 1103-1 at § 6.2.3.
As a “general rule,” “an employer may not claim the tip credit unless a tipped
employee is permitted to retain all of his tips.” Montano v. Montrose Rest. Assocs., Inc.,
800 F.3d 186, 188 (5th Cir. 2015) (citing 29 U.S.C. § 203(m)). This general rule is,
various averments regarding personal jurisdiction. (See, e.g., ECF No. 218 at 27 (“there is no
personal jurisdiction over the Florida and North Carolina locations”).) The Court discerns no
argument that warrants revisiting its discussion of personal jurisdiction in its prior Orders
Denying PRL’s Rule 12(b)(3) Motion to Dismiss and Granting in Part and Denying in Part
Defendants’ Motion to Decertify the FLSA Collective Action. (ECF Nos. 59, 205.) Indeed, apart
from Bristol-Myers, the only authority to which Defendants direct the Court is Green v. Fishbone
Safety Sols., Ltd., 2017 WL 4012123, at *1 (D. Colo. Sept. 12, 2017)—a case which is clearly
distinguishable because, unlike here, the defendants’ personal jurisdiction challenge was before
the court in accordance with a timely Rule 12(b)(2) motion.
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however, subject to a limited exception: An employer may “require an employee to ‘pool’
or share tips with other ‘employees’ so long as those employees ‘customarily and
regularly receive tips.’” Giuffre v. Marys Lake Lodge, LLC, 2012 WL 4478806, at *1 (D.
Colo. Sept. 28, 2012) (quoting 29 U.S.C § 203(m)); COMPS Order, 7 CCR 1103-1 at §
1.10 (similar). So it follows, “[i]f an employee is required to share tips with an employee
who does not customarily and regularly receive tips, the employer may not legally take a
tip credit.” Montano, 800 F.3d at 189; COMPS Order, 7 CCR 1103-1, at § 1.10
(“Employer-required sharing of tips with employees who do not customarily and
regularly receive tips, . . . shall nullify allowable tip credits towards the minimum wage.”).
Moreover, it is Defendants who have “the burden to demonstrate the propriety of
[their] tip pooling scheme.” Allsopp v. Akiyama, Inc., 2010 WL 1258006, at *5 (D. Colo.
Mar. 26, 2010); see also Steele v. Leasing Enterprises, Ltd., 827 F.3d 237, 242 (5th Cir.
2016) (“The employer carries the burden to prove its entitlement to the tip credit” under
the FLSA.); Myers v. Copper Cellar Corp., 192 F.3d 546, 549 n.4 (6th Cir. 1999) (“[A]n
employer who invokes a statutory exemption from minimum wage liability bears the
burden of providing its qualification for that exemption.”). Thus, the pertinent question is
whether Defendants can “prove that [they] only distributed tip pool funds among
employees who customarily and regularly receive tips.” (ECF No. 209 at 19.) The
Court agrees with Plaintiffs that they cannot.
Though it does not appear the Tenth Circuit has yet had occasion to analyze
under what specific circumstances an employee is “customarily and regularly tipped,”
both parties cite the Fifth Circuit’s decision in Montano, 800 F.3d 186. See also Paschal
v. Perry’s Restaurants Ltd., 2025 WL 596646, at *6–7 (W.D. Tex. Jan. 29, 2025)
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(concluding Montano was still good law after the Fifth Circuit’s decision in Restaurant
Law Center). There, the Fifth Circuit held that, “in determining whether an employee
customarily and regularly receives tips, a court—or a factfinder—must consider the
extent of an employee’s customer interaction.” Montano, 800 F.3d at 193. It also
instructed that courts should “consider whether the employee is engaging in customer
service functions,” as “[e]ven an employee who works in the dining room will not be
considered a tipped employee if his work is not customer-service oriented,” like “an
electrician who is repairing a chandelier.” Id. Ultimately, the Fifth Circuit noted that
“[d]etermining whether an employee is one who ‘customarily and regularly receives tips’
is a fact-intensive inquiry that requires a case-by-case analysis of the employee’s duties
and activities.” Id. at 194.
Here, even viewing the evidence in the light most favorable to Defendants, no
reasonable factfinder could conclude that the AM Employees had sufficient customer
interaction to be deemed “customarily and regularly tipped.” Indeed, the Sixth Circuit
Court of Appeals has specifically distinguished “off-hour employees” as one category of
worker that clearly would not qualify as a tipped employee. See Kilgore v. Outback
Steakhouse of Fla., Inc., 160 F.3d 294, 301 (6th Cir. 1998) (“One can distinguish hosts
from restaurant employees like dishwashers, cooks, or off-hour employees like an
overnight janitor who do not directly relate with customers at all.”); see also Martinez v.
Perry’s Restaurants Ltd, 2023 WL 3593167, at *26 n.4 (W.D. Tex. May 22, 2023)
(construing the phrase “off-hour” to refer to employees “working when customers are
not present”), report and recommendation adopted 2024 WL 23181 (W.D. Tex. Jan. 2,
2024). There can be little debate that the AM Employees fit that descriptor here, where
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it is undisputed that they substantially completed their shifts before the Four Locations
even opened to guests.
Defendants’ counterarguments do not convince the Court that it should find
otherwise. They first direct the Court’s attention to the current iteration of the United
States Department of Labor’s (“DOL”) Field Operations Handbook (“FOH”), which
states: “It is not required that all employees who receive tips from a mandatory
traditional tip pool themselves receive tips from customers as long as they work in an
occupation recognized as one in which employees customarily and regularly receive
tips.” FOH § 30d08(c) (2023). Inasmuch as the DOL has specifically recognized
bussers8 as one type of employee that customarily and regularly receive tips,
Defendants argue the AM Bussers are a “defined tipped occupation[].” (ECF No. 218 at
31–32 (citing DOL Opinion Letter, 2009 WL 649014, at *1–2 (Jan. 15, 2009)). But this
argument, in the Court’s view, amounts to little more than an assertion that, because the
AM Bussers have the title of “busser,” they are categorically tipped employees. And
“[l]abels are easily molded to fit a party’s goals and cannot be determinative of whether
an employee customarily and regularly receives tips.” Montano, 800 F.3d at 191.
Contradictorily enough, Defendants criticize Plaintiffs in the preceding paragraphs for
8 Plaintiffs also set forth facts and evidence in their Statement of Material Facts
supporting that the “service well position . . . did not qualify to be paid from the tip pool.” (ECF
No. 209 at 17–18.) However, the service well position / service well bartenders are thereafter
wholly unmentioned in the body of the Motion, and Plaintiffs conclude the Motion by asking the
Court to hold only that “Perry’s operated an unlawful tip pool in all weeks and at all locations in
which AM shift employees were paid using Plaintiffs’ tips from the tip pool.” (ECF No. 209 at
32.) Thus, it is somewhat unclear to the Court whether Plaintiffs are viewing the service well
employees as a subcategory of the AM Employees, or whether their intent was to separately
move for summary judgment as to the service well bartenders. To the extent it is the latter, the
Court will deny summary judgment as to the service well bartenders considering Plaintiffs’
failure to fully develop that argument in the Motion. Of course, Plaintiffs remain free to
challenge Perry’s inclusion of the service well bartenders in the tip pool at trial.
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the very same “impermissibl[e]” approach. (ECF No. 218 at 31 (“Plaintiffs . . .
impermissibly focus on labels of ‘busser,’ ‘host,’ etc. The FLSA focuses on duties.”).)
In a similar vein, Defendants also appear to argue that the AM Employees qualify
as tipped employees because they “are clearly front of house employees.” (ECF No.
218 at 30.) One could certainly debate Defendants’ formalistic definition of “front of
house.” But the Court ultimately need not engage in that debate, as the DOL has very
recently issued an opinion letter analyzing whether “front-of-house oyster shuckers”
qualified to participate in a restaurant’s tip pool that it finds illustrative. DOL Opinion
Letter, FLSA2025-03 (Sept. 30, 2025). Tellingly, the DOL’s consideration of whether
the oyster shuckers customarily and regularly received tips did not begin and end with
the fact that they were, undisputedly, “front-of-house” employees. Rather, it, too,
observed that, “to be an individual who customarily and regularly receives tips, an
employee must engage in service-related functions and have sufficient interaction with
the customers who leave tips, a portion of which are subsequently contributed to a tip
pool.” Id. at 3. In ultimately concluding that the oyster shuckers were customarily and
regularly tipped employees, the DOL’s analysis focused on the fact that they “directly
service[d] the customers by sharing and detailing oyster offerings to customers, making
suggestions to customers regarding oyster offerings, and fielding questions about the
different options” and “prepare[d] the oysters in plain view of the restaurant’s
customers.” Id. at 4. Point being, the fact that the AM Employees may, in a technical
sense, work in the “front of the house” is not the dispositive inquiry.
Defendants also argue that the AM Employees did have more than de minimis
interactions with customers sufficient to qualify them as customarily and regularly
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tipped. For instance, they contend the “AM Bussers did not work exclusively when the
restaurant was closed” but were instead “often the customers’ initial points of contact
who came into the restaurant for inquiries, or who were seated early before the
restaurant’s advertised opening time” and “worked into the early part of dinner service . .
. .” (ECF No. 218 at 30; see also ECF No. 218 at 20 ¶ 71 (asserting that, in at least 837
of the 3,400 shifts identified by Plaintiffs, employees clocked out after the advertised
opening time of 4:00 p.m.); ECF No. 218-1 at 2136 (attesting that customers at the
Alabama location “often come in” between 1:00 and 4:00 p.m. “to buy gift cards, make
reservations, look at rooms for private events . . . collect items they left the night
before,” etc.).) But Defendants have not adduced any specific evidence that persuades
the Court there is a genuine issue of material fact as to whether these opportunities for
direct customer interaction were more than occasional. And “occasional[] [] limited
contact with customers” does not a “customarily and regularly tipped” employee make.
Mould v. NJG Food Serv., Inc., 37 F. Supp. 3d 762, 700 (D. Md. 2014); see also
Montano, 800 F.3d at 192–93 (an employee “who occasionally responds to customer
requests and has minimal presence in the dining room setting up glasses likely is not a
tipped employee”).
Similarly, Defendants argue that AM Hosts “routinely interacted with customers
either in person or over the phone,” particularly to the extent one of their “primary
duties” was to “confirm and take reservations.” (ECF No. 218 at 33.) But here again,
Defendants have not adduced any specific evidence of the frequency with which these
phone calls occurred that persuades the Court there is a genuine issue of material fact
as to whether the AM Hosts had more than de minimis customer interaction. For that
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matter, nor is the Court persuaded that a phone call to confirm a customer reservation
even amounts to customer interaction. “The Montano customer interaction test
contemplates customers receiving a service and tipping for that service.” Paschal v.
Perry’s Restaurants Ltd., 2025 WL 3215363, at *9 (W.D. Tex. Nov. 10, 2025). Like the
district court in Paschal, this Court, too, finds it “implausible . . . that someone who
made a reservation, but who has yet to walk into Perry’s, much less be seated or
receive customer service, would have any incentive to leave a tip during an interaction
over the phone with a Perry’s staff member during which they simply confirm their
reservation.” Id.
Lastly, Defendants point to the fact that, “[o]f the alleged 3,400 AM shifts, at least
140 shifts occurred while a private lunch party was taking place at one of the Four
Locations . . . .” (ECF No. 218 at 21.) Even assuming these private lunch events
presented opportunities for AM Employees to provide direct customer service, which
Plaintiffs dispute (ECF No. 221 at 19), the fact that private lunch events took place 4%
of the time—or roughly one to three times a month at each location, with increasing
frequency around the holidays (ECF No. 218-1 at 10 ¶ 17; 2123 ¶ 16, 2129 ¶ 18, 2136 ¶
15)—also cannot support a finding of more than de minimis customer interaction. Cf.
Montano, 800 F.3d at 194 (observing that customer interaction on “one occasion per
week” was “only de minimis interaction”).
At bottom, as a matter of law and logic, employees who work morning shifts at a
restaurant while it is closed to guests cannot have more than de minimis customer
interaction sufficient to qualify them as “customarily and regularly tipped” employees.
For this reason, the Motion is granted to the extent that the Court finds, as a matter of
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law, the AM Employees are not “customarily and regularly tipped” and their inclusion in
the tip pool violated the FLSA and Colorado Wage Laws. PRL’s ultimate liability, of
course, remains subject to the Court’s determination at trial of whether it is an
“employer” under the FLSA.
C. 	Failure to Provide Notice of Tip Sharing to Customers
As a final point, Plaintiffs argue that the tip pool at the Colorado Location was
unlawful for the “independent reason” that Defendants “failed to comply with the notice
requirements of the CWCA . . . .” (ECF No. 209 at 32.) The CWCA specifically
provides that
[i]t is unlawful for an employer engaged in a business where
the custom prevails of the giving of gratuities by patrons to
an employee of the business to assert a claim to, or right of
ownership in, or control over gratuities. These gratuities are
the sole property of the employee unless the employer
notifies each patron in writing, including by a notice on a
menu, table tent, or receipt, that gratuities are shared by
employees. . . .
C.R.S. § 8-4-103(6) (2019) (emphasis added).
“PSC concedes [that] it did not have a customer-facing tip pool notice” at the
Colorado Location “[f]rom August 2, 2019 until May 2024.” (ECF No. 218 at 28.) But
Defendants continue: “Regardless, PSC employees received at least the full Colorado
minimum wage in total pay for every shift worked.” (Id.) It is unclear to the Court
whether Defendants are intending to argue there is no employer liability for failure to
comply with the CWCA’s tip share notice requirement where employees nevertheless
receive “at least the full Colorado minimum wage.” If so, they direct the Court to no
authority to support this position, and the Court otherwise discerns no language in the
statute suggesting that an employer is only liable for noncompliance with its notice
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provisions if its employees receive less than the minimum wage.
Accordingly, the Motion is granted to the extent that the Colorado Plaintiffs are
entitled to summary judgment that Perry’s failure to provide notice to customers of its tip
sharing policy between August 2019 and May 2024 was a violation of the CWCA.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS that:
1. 	Plaintiffs’ Motion for Partial Summary Judgment (ECF No. 209) is DENIED
to the extent that the Court FINDS it is a disputed issue of fact whether PRL is an
“employer” under the FLSA and Colorado Wage Laws.
2. 	Plaintiffs’ Motion is GRANTED to the extent that the Court FINDS:
a. 	PSC and, to the extent it is found to be an “employer” at trial, PRL’s
distribution of tip pool funds to the AM Employees violated the FLSA and
Colorado Wage Laws because the AM Employees were not “customarily and
regularly tipped” as a matter of law; and
b. 	PSC and, to the extent it is found to be an “employer” at trial, PRL’s
failure to provide notice to customers from April 2019 to May 2024 that
employees at the Colorado Location shared tips was a violation of the CWCA as
a matter of law.
3. 	This case REMAINS SET for a Final Trial Preparation Conference on
March 6, 2026 in Courtroom A801 at 2:00 p.m., and a 5-day bench trial to commence
on March 23, 2026.
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Dated this 3 rd day of February, 2026.
BY THE COURT:
______________________
William J. Martinez
Senior United States District Judge
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