Case: 1:12-cv-01882 Document #: 1 Filed: 03/15/12 Page 1 of 6 PageID #:1

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION GREGORY CURTIS, Individually, and on ) Behalf of All Others Similarly Situated, ) ) Plaintiff, ) ) v. ) ) GRAHAM ELLIOT, LLC, d/b/a ) GRAHAM ELLIOT RESTAURANT and ) GRAHAM ELLIOT BOWLES, ) ) Defendants. ) )

Case No. 12-cv-1882 PLAINTIFFS COLLECTIVE ACTION COMPLAINT (JURY TRIAL DEMANDED)

Plaintiff, GREGORY CURTIS, individually and on behalf of all other similarly situated employees, by and through his attorneys, Stephan Zouras, LLP, bring his claims as a collective action pursuant to the pursuant to the Fair Labor Standards Act, 29 U.S.C. 201 et seq. (the FLSA), and alleges, upon personal belief as to himself and his own acts, and as for all other matters upon information and belief, and based upon the investigation made by his counsel, as follows: JURISDICTION AND VENUE 1. This Court has subject-matter jurisdiction over this action pursuant to 29 U.S.C.

216(b), which provides that suit under the Fair Labor Standards Act (FLSA) may be maintained against any employer in any Federal or State court of competent jurisdiction. The Representative Plaintiff has signed an opt-in consent form. (Exhibit A). 2. 1331. This Court has federal question jurisdiction over this action pursuant to 28 U.S.C.

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3.

Venue is proper in this District pursuant to 28 U.S.C. 1391(b), because the

Defendants reside in this District and do business within it. In addition, a substantial part of the events and omissions giving rise to the claim pleaded in this Complaint occurred within this District THE PARTIES 4. Plaintiff Gregory Curtis worked as an hourly non-exempt server for Defendants at

their restaurant located at 217 West Huron Street, Chicago, Illinois, during the applicable statute of limitations period. 5. The Plaintiff was a tipped employee of Defendants as defined by the FLSA. 29

U.S.C. 203(d); 29 U.S.C. 203(m). 6. Defendant GRAHAM ELLIOT, LLC is an Illinois corporation doing business as

GRAHAM ELLIOT RESTAUARNT. At all material times, GRAHAM ELLIOT, LLC regularly and customarily transacted business within this judicial district. At all times hereinafter mentioned, Defendant GRAHAM ELLIOT, LLC has been and is an employer within the meaning of the FLSA. 29 U.S.C. 203(d). 7. Defendant GRAHAM ELLIOT BOWLES is manager and owner of GRAHAM

ELLIOT, LLC. At all material times, GRAHAM ELLIOT BOWLES was involved in the day to day business operation of GRAHAM ELLIOT, LLC, and had the authority to hire and fire employees, the authority to direct and supervise the work of employees, the authority to sign on corporate checking accounts, including payroll accounts, and the authority to make decisions regarding wage and hour classifications, employee compensation, employee timekeeping and capital expenditures. At all relevant times, GRAHAM ELLIOT BOWLES acted and had responsibility to act on behalf and in the

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interests of GRAHAM ELLIOT, LLC in devising, directing, implementing and supervising the wage and hour practices and policies relating to hourly-paid employees. As such, at all times hereinafter mentioned, Defendant GRAHAM ELLIOT BOWLES has been and is an employer within the meaning of the FLSA. 29 U.S.C. 203(d). 8. At all material times, Defendants were an enterprise engaged in commerce

within the meaning of the FLSA. 29 U.S.C. 203(s). NATURE OF THE SUIT 9. Plaintiffs bring this case on behalf of themselves and others who currently or

formerly worked as hourly non-exempt servers or other tipped employees performing similar responsibilities for the Defendants at any time during the three-year period immediately preceding the filing of the original complaint (hereinafter Statutory Period). 10. The FLSA allows employers to pay less than minimum wage to employees who

receive tips. 29 U.S.C. 203(m). In doing so, an employer may take a tip credit, which allows employers to include in their calculation of tipped employees wages in an amount that an employee receives in tips. Id. 11. In order to apply a tip credit toward an employees minimum wage under the

FLSA, an employer must satisfy several conditions, including: (1) the employer must inform the employee that it will take a tip credit; and, (2) tipped employees must retain all the tips they receive, except those tips included in a valid tipping pool among employees who customarily and regularly receive tips. Id.

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12.

Defendants violated the FLSA by requiring their servers to participate in an

invalid tip pool, whereby servers must pay a percentage of their tips to employees who do not customarily and regularly receive tips. 13. As a result of Defendants improper use of the tip credit provisions of the FLSA,

Defendants paid regular compensation to Plaintiff based on an incorrectly low regular rate of pay. 14. At all material times, Defendants failure to pay wages at the correct rate of pay

was willful. 15. Accordingly, Plaintiff brings this collective action to recover unpaid regular

wages under the FLSA. COUNT I VIOLATION OF THE FAIR LABOR STANDARDS ACT COLLECTIVE ACTION FOR UNPAID MINIMUM WAGES 16. 17. Plaintiff reincorporates and restated all the above paragraphs by reference. Plaintiff and those he seeks to represent are individuals employed by Defendants

as tipped employees during the statutory period (hereafter Plaintiffs). Plaintiffs all shared similar job titles, training, compensation plans, job descriptions and job requirements. 18. Defendants managed Plaintiffs work, including the amount of time worked, the

amount of time recorded and compensation paid. The Defendants dictated, controlled and ratified the wage and hour and all related employee compensation policies. 19. Defendants required Plaintiffs and their other servers to contribute a portion of

their total gross sales during each shift to a tip pool controlled by Defendants.

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Defendants then distributed the entire tip pool to bartenders, bussers, food runners and cooks. 20. Defendants cooks and food runners are not tipped employees and may not legally

participate in a tip pool. Because Defendants cooks and food runners received a portion of Plaintiffs tips, Defendants practice violates the FLSA. 21. As a result of Defendants unlawful practices, the Defendants unjustly benefited

from reduced labor and payroll costs. 22. Plaintiffs were all subject to Defendants uniform policies and practices and were

victims of Defendants systematic scheme to deprive them of regular and overtime compensation. 23. As a result of Defendants failure to pay Plaintiffs in accordance with the

requirements of the FLSA, Plaintiffs suffered lost wages and other damages. PRAYER FOR RELIEF WHEREFORE, the Plaintiff, GREGORY CURTIS, individually and on behalf of all others similarly situated, by and through his attorneys, STEPHAN ZOURAS, LLP, demands judgment against the Defendants, jointly and severally, and in favor of the Plaintiffs and all others similarly situated, for a sum that will properly, adequately and completely compensate Plaintiff and the putative collective class for the nature, extent and duration of their damages, the costs of this action and as follows: A. Order the Defendants to file with this Court and furnish to counsel a list of all names and addresses of all tipped employees employed by Defendants who currently work or have worked for Defendants within the last three years; Authorize Plaintiffs counsel to issue notice at the earliest possible time to all current and former tipped employees employed by the Defendants during the applicable statutory period, informing them that this action has

B.

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been filed, of the nature of the action, and of their right to opt-in to this lawsuit; C. Declare and find that the Defendants committed one or more of the following acts: i. Violated minimum wage provisions of the FLSA by failing to pay minimum wages to Plaintiffs and similarly situated persons who opt-in to this action; and, ii. Willfully violated the minimum wage provisions of the FLSA; D. E. F. G. H. I. J. Award compensatory damages, including all pay owed, in an amount according to proof; Award interest on all compensation due accruing from the date such amounts were due; Award liquidated damages on all compensation due accruing from the date such amounts were due; Award all costs and reasonable attorneys fees incurred prosecuting this claim; Grant leave to amend to add claims under applicable state and federal laws; Grant leave to add additional plaintiffs by motion, the filing of written consent forms, or any other method approved by the Court; and, For such further relief as the Court deems just and equitable.

Dated: March 15, 2012

Respectfully Submitted, /s/ James B. Zouras____________ Stephan Zouras, LLP 205 N. Michigan Avenue, Suite 2560 Chicago, Illinois 60601 312-233-1550 312-233-1560 f www.stephanzouras.com ATTORNEYS FOR PLAINTIFFS