IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI WESTERN DIVISION
RICHARD L. ALLEN, et al., ) ) Plaintiffs, ) v. ) Case No.: 17-cv-00374-GAF ) PINNACLE ENTERTAINMENT, INC., ) et al., ) ) Defendants. )
DEFENDANTS’ ANSWERS TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
Defendants Pinnacle Entertainment, Inc. (“Pinnacle”), PNK (River City), LLC d/b/a
River City Casino & Hotel (“River City”), and Ameristar Casino Kansas City, LLC
(“Ameristar”), (collectively, “Defendants”), respectfully answer and further respond to the allegations set forth in Plaintiffs’ First Amended Complaint as follows:
INTRODUCTION
1. Plaintiffs and all other similarly situated employees work or worked for Defendant Pinnacle, a casino entertainment company.
ANSWER: Defendants admit that Plaintiffs Allen, Mesplay and Kobermann are employed by Defendant River City and that Plaintiff Sanchez is employed by Defendant
Ameristar. Defendants specifically deny that Plaintiffs or any other allegedly “similarly situated” employees work or worked for Defendant Pinnacle. Defendants deny the remaining allegations and implications of Paragraph 1 of Plaintiffs’ First Amended
Complaint.
1 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 1 of 72 2. Plaintiff Allen worked at Defendant River City, a casino owned and operated by Defendant Pinnacle in St. Louis, Missouri. Plaintiff Allen was jointly employed by Defendants Pinnacle and River City.
ANSWER: Defendants admit that Plaintiff Allen is employed by Defendant River
City. Defendants further admit Defendants River City and Ameristar are currently indirect subsidiaries of Defendant Pinnacle. Defendants specifically deny that Plaintiff
Allen has ever been employed, jointly or otherwise, by Defendant Pinnacle. Defendants deny the remaining allegations and implications of Paragraph 2 of Plaintiffs’ First
Amended Complaint.
3. Plaintiff Sanchez worked at Defendant Ameristar, a casino owned and operated by Defendant Pinnacle in Kansas City, Missouri. Plaintiff Sanchez was jointly employed by Defendants Pinnacle and Ameristar.
ANSWER: Defendants admit that Plaintiff Sanchez is employed by Defendant
Ameristar. Defendants further admit Defendants River City and Ameristar are currently indirect subsidiaries of Defendant Pinnacle. Defendants specifically deny that Plaintiff
Sanchez has ever been employed, jointly or otherwise, by Defendant Pinnacle. Defendants deny the remaining allegations and implications of Paragraph 3 of Plaintiffs’ First
Amended Complaint.
4. Plaintiff Mesplay worked at Defendant River City, a casino owned and operated by Defendant Pinnacle in St. Louis, Missouri. Plaintiff Mesplay was jointly employed by Defendants Pinnacle and River City.
ANSWER: Defendants admit that Plaintiff Mesplay is employed by Defendant
River City. Defendants further admit Defendants River City and Ameristar are currently indirect subsidiaries of Defendant Pinnacle. Defendants specifically deny that Plaintiff
2 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 2 of 72 Mesplay has ever been employed, jointly or otherwise, by Defendant Pinnacle. Defendants deny the remaining allegations and implications of Paragraph 4 of Plaintiffs’ First
Amended Complaint.
5. Plaintiff Kobermann worked at Defendant River City, a casino owned and operated by Defendant Pinnacle in St. Louis, Missouri. Plaintiff Kobermann was jointly employed by Defendants Pinnacle and River City.
ANSWER: Defendants admit that Plaintiff Kobermann is employed by
Defendant River City. Defendants further admit Defendants River City and Ameristar are currently indirect subsidiaries of Defendant Pinnacle. Defendants specifically deny that
Plaintiff Kobermann has ever been employed, jointly or otherwise, by Defendant Pinnacle.
Defendants deny the remaining allegations and implications of Paragraph 5 of Plaintiffs’
First Amended Complaint.
6. Pursuant to their company-wide policies, procedures, and practices, Defendants failed to pay Plaintiff Allen, Plaintiff Sanchez, and other similarly situated employees, the mandated federal and/or state minimum wage rate for all hours worked and overtime for all hours worked over 40 in a single workweek. In particular:
a. Defendants’ time-clock rounding policy, procedure, and practice is used in such a manner that it results, over a period of time, in the failure to compensate their employees properly for all time worked.
b. Defendants also failed to properly inform their tipped employees of the required tip credit provisions.
c. Defendants also improperly allocated funds from the tip or toke pool from which tipped employees are paid in allowing non-tipped and/or managerial employees to receive money from the tip pool.
d. Defendants also failed to pay their employees for participating in compensable training sessions required by Defendants.
3 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 3 of 72 e. Defendants also breached a contract with their employees to pay them “paid time off” (“PTO”) at the employees’ current regular rate of pay at the time it is taken.
ANSWER: Defendants admit that Plaintiffs Allen, Mesplay and Kobermann are employed by Defendant River City and that Plaintiff Sanchez is employed by Defendant
Ameristar. The remaining allegations in Paragraph 6 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and implications. Defendants further deny they engaged in any unlawful conduct and deny any remaining allegations and implications in Paragraph 6 of Plaintiffs’ First Amended Complaint.
7. Pursuant to their company-wide policies, procedures, and practices, Defendants misclassified Plaintiff Mesplay, Plaintiff Kobermann, and other similarly situated employees as exempt employees under the Fair Labor Standards Act. As a result, Plaintiff Mesplay, Plaintiff Kobermann, and other similarly situated employees were denied compensation due and owing for hours worked in excess of forty hours in a workweek.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 7 of Plaintiffs’ First Amended Complaint.
8. Defendants’ systematic violations of federal and state wage laws were willful.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 8 of Plaintiffs’ First Amended Complaint.
9. Plaintiffs, on behalf of themselves individually and all others similarly situated, bring this lawsuit as: (a) a collective action under the Fair Labor Standards Act, (“FLSA”), 29 U.S.C. § 201 et seq., to recover unpaid minimum and overtime wages owed to Plaintiffs and all other similarly situated workers employed by Defendants; and (b) a Rule 23 class action under Missouri state law, including the Missouri Minimum Wage Law (“MMWL”), R.S.Mo. § 290.500 et seq.
4 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 4 of 72 ANSWER: The allegations in Paragraph 9 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 9 of Plaintiffs’ First Amended Complaint.
JURISDICTION AND VENUE
10. The FLSA authorizes court actions by private parties to recover damages for violation of the FLSA’s wage and hour provisions. Jurisdiction over the FLSA claims of Plaintiffs and all others similarly situated is based on 29 U.S.C. § 216(b) and 28 U.S.C. § 1331.
ANSWER: The allegations in Paragraph 10 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny jurisdiction is proper with regard to all corporations outside the state of Missouri or having insufficient (and typically no) contact with Missouri, as well as all alleged employees or persons outside the State of Missouri or having insufficient (and typically no) contact with Missouri. Defendants further deny they engaged in any unlawful conduct and deny that any collective or class action is proper for certification (conditional or otherwise). Defendants deny the remaining allegations and implications in Paragraph 10 of Plaintiffs’ First Amended Complaint.
11. Missouri law authorizes court actions by private parties to recover damages for violation of the MMWL’s wage and hour provisions. Jurisdiction over the state law claims of Plaintiffs and all others similarly situated is based on 28 U.S.C. § 1367 and R.S.Mo. § 290.527, in that such state law claims are so related to the FLSA claims that they form part of the same case or controversy.
ANSWER: The allegations in Paragraph 11 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a
5 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 5 of 72 response is required, Defendants deny jurisdiction is proper with regard to all corporations outside the state of Missouri or having insufficient (and typically no) contact with Missouri, as well as all alleged employees or persons outside the State of Missouri or having insufficient (and typically no) contact with Missouri. Defendants further deny they engaged in any unlawful conduct and deny that any collective or class action is proper for certification (conditional or otherwise). Defendants deny the remaining allegations and implications in Paragraph 11 of Plaintiffs’ First Amended Complaint.
12. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b), because a substantial part of the events or omissions giving rise to the claims set forth herein occurred in this judicial district.
ANSWER: The allegations in Paragraph 12 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny venue is proper with regard to all corporations outside the state of Missouri or having typically no contact with Missouri, as well as all alleged employees or persons outside the State of Missouri or having typically no contact with Missouri. Defendants further deny a substantial part of the events or omissions giving rise to the claims set forth herein occurred in this judicial district. Defendants further deny they engaged in any unlawful conduct and deny that any collective or class action is proper for certification (conditional or otherwise). Defendants deny the remaining allegations and implications in Paragraph 12 of Plaintiffs’ First Amended Complaint.
6 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 6 of 72 PARTIES
13. Plaintiff Allen is a resident of the State of Illinois. From February 8, 2010 to the present, Plaintiff Allen has been employed by Defendants Pinnacle and River City as a dealer at Defendants’ casino located at 777 River City Casino Boulevard, St. Louis, Missouri, 63125. Plaintiff Allen’s Consent to Be a Party Plaintiff pursuant to 29 U.S.C. § 216(b) was filed on May 12, 2017 (Doc. 1-1).
ANSWER: Upon information and belief, Defendants admit Plaintiff Allen is a resident of the State of Illinois. Defendants further admit that Plaintiff Allen has been employed as a dealer by Defendant River City at 777 River City Casino Boulevard, St.
Louis, Missouri, 63125, since February 8, 2010. Defendants specifically deny that Plaintiff
Allen has ever been employed, jointly or otherwise, by Defendant Pinnacle. Defendants deny the remaining allegations and implications of Paragraph 13 of Plaintiffs’ First
Amended Complaint.
14. Plaintiff Sanchez is a resident of the State of Missouri. From October 2, 2014 to the present, Plaintiff Sanchez has been employed by Defendants Pinnacle and Ameristar as a dealer at Defendants’ casino located at 3200 Ameristar Drive, Kansas City, Missouri 64161. Plaintiff Sanchez’s Consent to Be a Party Plaintiff pursuant to 29 U.S.C. § 216(b) was filed on May 12, 2017 (Doc. 1-2).
ANSWER: Upon information and belief, Defendants admit Plaintiff Sanchez is a resident of the State of Missouri. Defendants further admit that Plaintiff Sanchez has been employed as a dealer by Defendant Ameristar at 3200 Ameristar Drive, Kansas City,
Missouri 64161, since October 2, 2014. Defendants specifically deny that Plaintiff Sanchez has ever been employed, jointly or otherwise, by Defendant Pinnacle. Defendants deny the remaining allegations and implications of Paragraph 14 of Plaintiffs’ First Amended
Complaint.
7 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 7 of 72 15. Plaintiff Mesplay is a resident of the State of Missouri. From 2010 to the present, Plaintiff Mesplay has been employed by Defendants Pinnacle and River City as a Floor Supervisor at Defendants’ casino located at 777 River City Casino Boulevard, St. Louis, Missouri, 63125. Plaintiff Mesplay’s Consent to Be a Party Plaintiff pursuant to 29 U.S.C. § 216(b) is attached hereto as Exhibit A.
ANSWER: Upon information and belief, Defendants admit Plaintiff Mesplay is a resident of the State of Missouri. Defendants further admit that Plaintiff Mesplay has been employed by Defendant River City at 777 River City Casino Boulevard, St. Louis,
Missouri, 63125, since February 8, 2010. Defendants specifically deny that Plaintiff
Mesplay has ever been employed, jointly or otherwise, by Defendant Pinnacle. Defendants deny the remaining allegations and implications of Paragraph 15 of Plaintiffs’ First
Amended Complaint.
16. Plaintiff Kobermann is a resident of the State of Missouri. From 2010 to the present, Plaintiff Kobermann has been employed by Defendants Pinnacle and River City as a Floor Supervisor at Defendants’ casino located at 777 River City Casino Boulevard, St. Louis, Missouri, 63125. Plaintiff Kobermann’s Consent to Be a Party Plaintiff pursuant to 29 U.S.C. § 216(b) is attached hereto as Exhibit B.
ANSWER: Upon information and belief, Defendants admit Plaintiff Kobermann is a resident of the State of Missouri. Defendants further admit that Plaintiff Kobermann has been employed by Defendant River City at 777 River City Casino Boulevard, St. Louis,
Missouri, 63125, since 2010. Defendants specifically deny that Plaintiff Kobermann has ever been employed, jointly or otherwise, by Defendant Pinnacle. Defendants deny the remaining allegations and implications of Paragraph 16 of Plaintiffs’ First Amended
Complaint.
8 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 8 of 72 17. Defendant Pinnacle is a corporation organized under the laws of the State of Delaware, with its principal place of business located in the State of Nevada. Defendant Pinnacle owns and operates Defendants River City and Ameristar.
ANSWER: Defendants admit Defendant Pinnacle is a corporation organized under the laws of the State of Delaware, with its principal place of business located in the
State of Nevada. Defendants further admit Defendants River City and Ameristar are currently indirect subsidiaries of Defendant Pinnacle. Defendants deny the remaining allegations and implications of Paragraph 17 of Plaintiffs’ First Amended Complaint.
18. Defendant River City is a limited liability company organized under the laws of the State of Missouri. Defendant River City is owned, operated, and controlled by Defendant Pinnacle.
ANSWER: Defendants admit Defendant PNK (River City), LLC d/b/a River City
Casino & Hotel, is a limited liability company organized under the laws of the State of
Missouri, with its principal place of business located in the State of Missouri. Defendants further admit Defendants River City and Ameristar are currently indirect subsidiaries of
Defendant Pinnacle. Defendants deny the remaining allegations and implications of
Paragraph 18 of Plaintiffs’ First Amended Complaint.
19. Defendant Ameristar is a limited liability company organized under the laws of the State of Missouri. Defendant Ameristar is owned, operated, and controlled by Defendant Pinnacle.
ANSWER: Defendants admit Defendant Ameristar Casino Kansas City, LLC is a limited liability company organized under the laws of the State of Missouri, with its principal place of business located in the State of Missouri. Defendants further admit
Defendants River City and Ameristar are currently indirect subsidiaries of Defendant
9 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 9 of 72 Pinnacle. Defendants deny the remaining allegations and implications of Paragraph 19 of
Plaintiffs’ First Amended Complaint.
20. In Defendant Pinnacle’s Form 10-K, filed on February 28, 2017, Exhibit 21 lists Defendants River City and Ameristar as subsidiaries of Defendant Pinnacle.
ANSWER: Defendants state that the Form 10-K (including Exhibit 21) filed on
February 28, 2017, speaks for itself and must be read in context. Defendants deny the remaining allegations and implications in Paragraph 20 of Plaintiffs’ First Amended
Complaint.
21. At all relevant times, Defendants were the employer and/or joint employer of Plaintiffs, and all other similarly situated employees:
a. Both Defendant Pinnacle and Defendant River City had the power to hire and fire Plaintiff Allen and all other similarly situated employees. Both Defendant Pinnacle and Defendant Ameristar had the power to hire and fire Plaintiff Sanchez and all other similarly situated employees. Both Defendant Pinnacle and Defendant River City had the power to hire and fire Plaintiff Mesplay and all other similarly situated employees. Both Defendant Pinnacle and Defendant River City had the power to hire and fire Plaintiff Kobermann and all other similarly situated employees;
b. Both Defendant Pinnacle and Defendant River City supervised and controlled the work schedules and conditions of employment of Plaintiff Allen and all other similarly situated employees. Both Defendant Pinnacle and Defendant Ameristar supervised and controlled the work schedules and conditions of employment of Plaintiff Sanchez and all other similarly situated employees. Both Defendant Pinnacle and Defendant River City supervised and controlled the work schedules and conditions of employment of Plaintiff Mesplay and all other similarly situated employees. Both Defendant Pinnacle and Defendant River City supervised and controlled the work schedules and conditions of employment of Plaintiff Kobermann and all other similarly situated employees;
c. Both Defendant Pinnacle and Defendant River City determined the rate and method of payment for Plaintiff Allen and all other similarly situated
10 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 10 of 72 employees. Both Defendant Pinnacle and Defendant Ameristar determined the rate and method of payment for Plaintiff Sanchez and all other similarly situated employees. Both Defendant Pinnacle and Defendant River City determined the rate and method of payment for Plaintiff Mesplay and all other similarly situated employees. Both Defendant Pinnacle and Defendant River City determined the rate and method of payment for Plaintiff Kobermann and all other similarly situated employees;
d. Both Defendant Pinnacle and Defendant River City maintained employment records (including time clock records) for Plaintiff Allen and all other similarly situated employees. Both Defendant Pinnacle and Defendant Ameristar maintained employment records (including time clock records) for Plaintiff Sanchez and all other similarly situated employees. Both Defendant Pinnacle and Defendant River City maintained employment records (including time clock records) for Plaintiff Mesplay and all other similarly situated employees. Both Defendant Pinnacle and Defendant River City maintained employment records (including time clock records) for Plaintiff Kobermann and all other similarly situated employees.
ANSWER: The allegations in Paragraph 21 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. Defendants deny any and all remaining allegations and implications in Paragraph 21 of Plaintiffs’ First
Amended Complaint.
22. At all times relevant to this action, Defendants acted by and through their agents, servants, and employees, each of whom acted in the course and scope of their employment with and for Defendants.
ANSWER: The allegations in Paragraph 22 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 22 of Plaintiffs’ First Amended Complaint.
11 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 11 of 72 GENERAL ALLEGATIONS
23. Plaintiffs re-allege the allegations set forth above.
ANSWER: Defendants incorporate their answers and additional responses set forth above.
24. According to Defendant Pinnacle’s Form 10-K, filed on February 28, 2017, “Pinnacle Entertainment, Inc. is an owner, operator and developer of casinos and related hospitality and entertainment businesses. ... We own and operate 16 gaming, hospitality, and entertainment businesses.”
ANSWER: Defendants state that the Form 10-K filed on February 28, 2017, speaks for itself and must be read in context. Defendants admit Defendants River City and
Ameristar are currently indirect subsidiaries of Defendant Pinnacle. Defendants deny the remaining allegations and implications in Paragraph 24 of Plaintiffs’ First Amended
Complaint.
25. According to Defendant Pinnacle’s Form 10-K, filed on February 28, 2017, “[a]s of December 31, 2016, we employed 16,092 full-time and part-time employees.”
ANSWER: Defendants state that the Form 10-K filed on February 28, 2017, speaks for itself and must be read in context. Defendants deny the remaining allegations and implications in Paragraph 25 of Plaintiffs’ First Amended Complaint.
26. According to its website (https://www.pnkinc.com/about-us/), Defendant Pinnacle “is a dynamic and growing casino entertainment company with nearly 17,000+ team members.”
ANSWER: Defendants state that the website speaks for itself and must be read in context. Defendants deny the remaining allegations and implications in Paragraph 26 of
Plaintiffs’ First Amended Complaint.
12 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 12 of 72 27. According to its website (https://www.pnkinc.com/about-us/), Defendant Pinnacle “owns and operates 15 gaming entertainment properties, located in Colorado, Indiana, Iowa, Louisiana, Mississippi, Missouri, Nevada, Ohio and Pennsylvania.”
ANSWER: Defendants state that the website speaks for itself and must be read in context. Defendants admit Defendants River City and Ameristar are currently indirect subsidiaries of Defendant Pinnacle. Defendants deny the remaining allegations and implications in Paragraph 27 of Plaintiffs’ First Amended Complaint.
28. Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees are non- exempt, hourly employees who work or worked for Defendants at their gaming entertainment properties within the respective limitations periods.
ANSWER: Defendants admit Plaintiffs Allen and Sanchez are non-exempt employees who work for Defendants River City and Ameristar, respectively. Defendants deny the remaining allegations and implications in Paragraph 28 of Plaintiffs’ First
Amended Complaint.
29. Plaintiff Mesplay, Plaintiff Kobermann, and all similarly situated employees who work or worked for Defendants at their gaming entertainment properties within the respective limitations period were classified by Defendants as exempt employees.
ANSWER: Defendants admit Plaintiffs Mesplay and Kobermann are exempt employees who work for Defendant River City. Defendants deny the remaining allegations and implications in Paragraph 29 of Plaintiffs’ First Amended Complaint.
Unlawful Rounding Violations
30. Plaintiffs re-allege the allegations set forth above.
13 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 13 of 72 ANSWER: Defendants incorporate their answers and additional responses set forth above.
31. Defendants utilize a computerized system which tracks the exact time (accurate to 1 minute or less) an hourly employee clocks in and clocks out of work.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 31 of Plaintiffs’ First Amended Complaint.
32. Even though Defendants maintain a system which records, to the minute, the time an employee clocks in and clocks out, Defendants utilize a rounding system in computing payroll which rounds to the closest 15-minute interval.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 32 of Plaintiffs’ First Amended Complaint.
33. For example, an employee who clocks in between 7:53 a.m. and 8:07 a.m. will be treated by Defendants’ payroll computations as having clocked in at 8:00 a.m.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 33 of Plaintiffs’ First Amended Complaint.
34. Defendants utilize the same rounding system for clock outs.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 34 of Plaintiffs’ First Amended Complaint.
35. For example, an employee who clocks out between 5:08 p.m. and 5:22 p.m. will be treated by Defendants’ payroll computations as having clocked out at 5:15 p.m.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 35 of Plaintiffs’ First Amended Complaint.
14 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 14 of 72 36. Viewed in a vacuum, the rounding system utilized by Defendants appears to neither favor Defendants nor their employees as Defendants utilize the same rounding system when an employee clocks in or out.
ANSWER: Defendants deny the allegations and implications in Paragraph 36 of
Plaintiffs’ First Amended Complaint.
37. However, Defendants utilize a disciplinary system to alter the seemingly neutral rounding system in a manner which transforms Defendants’ rounding system into a system that is substantially rigged in Defendants’ favor.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 37 of Plaintiffs’ First Amended Complaint.
38. Pursuant to Defendants’ policies, Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees are required to clock in and commence work approximately 7 minutes before the start of their shift.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 38 of Plaintiffs’ First Amended Complaint.
39. Pursuant to Defendants’ policies, Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees are subject to discipline if they clock in after the start of their shift.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 39 of Plaintiffs’ First Amended Complaint.
40. Pursuant to Defendants’ policies, Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees are required to clock out no more than 7 minutes after the end of their shift. ANSWER: Defendants deny each and every allegation and implication in
Paragraph 40 of Plaintiffs’ First Amended Complaint.
41. As a result of Defendants’ policies, Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees typically clock in and begin working 7 minutes prior to the start of their shift.
15 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 15 of 72 ANSWER: Defendants deny each and every allegation and implication in
Paragraph 41 of Plaintiffs’ First Amended Complaint.
42. As a result of Defendants’ policies, Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees do not typically clock in after the start of their shift, because if they do, they are subject to discipline.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 42 of Plaintiffs’ First Amended Complaint.
43. Per Defendants’ rounding system, none of the pre-shift work (up to 7 minutes per day) is paid as Defendants round this time to the next 15-minute interval, the employees’ scheduled start time.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 43 of Plaintiffs’ First Amended Complaint.
44. Accordingly, at the start of an employee’s shift, Defendants’ rounding system is rigged in favor of Defendants because Defendants utilize their disciplinary system to ensure that, most of the time, the rounding which occurs at the start of the shift decreases the amount of compensable time Defendants pays their employees.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 44 of Plaintiffs’ First Amended Complaint.
45. Moreover, Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees, at the end of the day, are required to clock out no more than 7 minutes after the end of their shift.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 45 of Plaintiffs’ First Amended Complaint.
46. Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees do not typically leave work early; instead, they routinely leave work and clock out between the end of their shift and 7 minutes thereafter.
16 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 16 of 72 ANSWER: Defendants deny each and every allegation and implication in
Paragraph 46 of Plaintiffs’ First Amended Complaint.
47. Accordingly, at the end of an employee’s shift, Defendants’ rounding system is rigged in favor of Defendants because the rounding which occurs at the end of their shift decreases the amount of compensable time Defendants pays their employees.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 47 of Plaintiffs’ First Amended Complaint.
48. In sum, Defendants’ rounding policy and practice is used in such a manner that it results, over a period of time, in failure to compensate their employees properly for all the time they have actually worked.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 48 of Plaintiffs’ First Amended Complaint.
49. Defendants have no good faith basis to use such a rigged rounding system as their time clocks record the actual clock in and clock out times to at least a one-minute accuracy. Defendants have complete knowledge of all hours worked by Plaintiff Allen, Plaintiff Sanchez, and all other similarly situated employees.
ANSWER: The allegations in Paragraph 49 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 49 of Plaintiffs’ First Amended Complaint.
50. Defendants’ failure to pay this unpaid time has resulted in Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees being regularly denied proper compensation under the FLSA, and/or the MMWL.
ANSWER: The allegations in Paragraph 50 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a
17 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 17 of 72 response is required, Defendants deny each and every allegation and implication in
Paragraph 50 of Plaintiffs’ First Amended Complaint.
51. Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees, in conformance with Defendants’ clock-in and clock-out policies, and disciplinary policies, regularly clocked in and commenced work several minutes before the start of their shifts.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 51 of Plaintiffs’ First Amended Complaint.
52. For example, during the workweek of 2/5/16 to 2/11/16 (Defendants’ workweek runs from Friday to Thursday), Defendants paid a direct hourly wage of $7.09 to Plaintiff Allen for approximately forty (40) hours of work, based on Plaintiff Allen’s rounded clock-in and clock-out times. Defendants’ rounding policy resulted in Plaintiff Allen receiving no direct hourly wage for at least fifteen (15) minutes (or 0.25 hours) of work during that workweek. Thus, during that workweek, Plaintiff Allen actually worked 40.25 hours, and received a total weekly wage of $283.63 resulting in an hourly wage of $7.05 per hour. Therefore, during that workweek, Plaintiff Allen’s wages fell below the requisite federal minimum wage ($7.25/hour) and the requisite Missouri state minimum wage ($7.65/hour). Because the amount Plaintiff Allen was paid during that workweek divided by the number of hours he actually worked resulted in an amount less than the statutory requirement, Defendants Pinnacle and River City violated state and federal minimum wage requirements.
ANSWER: The allegations in Paragraph 52 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants state that Plaintiff Allen’s timecards and pay records speak for themselves and deny the allegations and implications in Paragraph 52 of
Plaintiffs’ First Amended Complaint.
53. During that workweek and others, Defendants’ rounding policy caused Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees’ wages to fall below the requisite minimum wage and/or caused them to incur overtime for which they were not compensated (for all hours worked over 40 in a single workweek).
18 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 18 of 72 ANSWER: The allegations in Paragraph 53 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and implications in Paragraph 53 of
Plaintiffs’ First Amended Complaint.
Unpaid Job Training
54. Defendants require dealers to either complete an unpaid dealer training course or have previous dealing experience before they are hired.
ANSWER: Defendants deny the allegations and implications in Paragraph 54 of
Plaintiffs’ First Amended Complaint.
55. Once hired, Defendants require Plaintiff Allen, Plaintiff Sanchez, and all similarly situated dealers to expand their dealing skills and learn how to deal additional table games. Defendants also have other hourly employees who are required to participate in unpaid training programs throughout their employment.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 55 of Plaintiffs’ First Amended Complaint.
56. For this purpose, Defendants provide training to their employees on their premises. Defendants provide training on various policies and on table games offered at the casino, including “carnival games” and other specialty games such as roulette and craps.
ANSWER: Defendants admit Defendant Ameristar and Defendant River City provide their respective employees with training for various reasons from time to time on their respective premises, including training regarding certain table games. Defendants deny the remaining allegations and implications in Paragraph 56 of Plaintiffs’ First
Amended Complaint.
19 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 19 of 72 57. However, Plaintiff Allen, Plaintiff Sanchez, and all other similarly situated employees are not paid for time spent in Defendants’ training classes.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 57 of Plaintiffs’ First Amended Complaint.
58. Defendants’ training sessions are typically scheduled during regular working hours, forcing employees to reschedule their shifts in order to attend.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 58 of Plaintiffs’ First Amended Complaint.
59. Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees’ attendance at Defendants’ training programs is compensable working time under the FLSA.
ANSWER: The allegations in Paragraph 59 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and implications in Paragraph 59 of
Plaintiffs’ First Amended Complaint.
60. Defendants’ job postings state that dealers will be required to learn additional games during their employment.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 60 of Plaintiffs’ First Amended Complaint.
61. Defendants demand that dealers learn how to deal new games so that they are able to work more stations on the casino floor.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 61 of Plaintiffs’ First Amended Complaint.
20 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 20 of 72 62. Defendants’ employees are led to believe that not participating in the training will have adverse effects on performance reviews, assignment to less desirable shifts or tasks, termination or demotion.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 62 of Plaintiffs’ First Amended Complaint.
63. Defendants’ training sessions are designed to make their employees more effective at their current jobs and are directly related to employees’ jobs for Defendants.
ANSWER: Defendants Ameristar and River City admit certain training sessions are designed to make their respective employees more effective at their current jobs and are directly related to their respective employees’ jobs. Defendants deny the remaining allegations and implications in Paragraph 63 of Plaintiffs’ First Amended Complaint.
64. Defendants consider such guidance and/or training an “on-going process under the direction of all casino supervisors.”
ANSWER: Defendants are without sufficient information to identify the source of the quote set forth in Paragraph 64 of Plaintiffs’ First Amended Complaint and, accordingly, deny the allegations set forth in Paragraph 64.
65. Defendants do not compensate Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees for their attendance at such training sessions.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 65 of Plaintiffs’ First Amended Complaint.
66. Upon information and belief, Defendants adhere to the same training policies and practices with respect to Plaintiff Allen, Plaintiff Sanchez, and all other similarly situated dealers at all of their casino locations nationwide.
21 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 21 of 72 ANSWER: Defendants deny each and every allegation and implication in
Paragraph 66 of Plaintiffs’ First Amended Complaint.
67. Defendants’ refusal and failure to pay Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees for attending such training sessions is a violation of both state and federal wage and hour laws.
ANSWER: The allegations in Paragraph 67 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 67 of Plaintiffs’ First Amended Complaint.
68. Plaintiff Allen, Plaintiff Sanchez, and other similarly situated dealers participated in unpaid training programs on Defendants’ premises.
ANSWER: Upon information and belief, Defendants admit Plaintiffs Allen and
Sanchez each attended paid training classes during the time period at issue on Defendant
River City and Defendant Ameristar’s premises, respectively. Defendants are without sufficient information to admit or deny whether either Plaintiffs Allen or Sanchez attended any voluntary, unpaid training classes during the time period at issue or on Defendant
River City or Defendant Ameristar’s premises and, accordingly, deny same. Defendants deny all remaining allegations and implications in Paragraph 68 of Plaintiffs’ First
Amended Complaint.
69. Defendants’ unpaid training policy resulted in Plaintiff Allen, Plaintiff Sanchez, and other similarly situated dealers receiving no direct hourly wage for such training hours during those workweeks.
22 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 22 of 72 ANSWER: The allegations in Paragraph 69 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 69 of Plaintiffs’ First Amended Complaint.
70. During those workweeks, Defendants’ unpaid training policy caused Plaintiff Allen’s, Plaintiff Sanchez’s, and other similarly situated employees’ wages to fall below the requisite minimum wage and/or caused them to incur overtime for which they were not compensated (for all hours worked over 40 in a single workweek).
ANSWER: The allegations in Paragraph 70 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 70 of Plaintiffs’ First Amended Complaint.
Entitlement to the Tip Credit – Failure to Give Notice
71. As discussed above, an employer may, in certain circumstances, take a “tip credit” toward its minimum wage obligations for tipped employees. Pursuant to the explicit language of the FLSA, a tip credit may not be taken “with respect to any tipped employee unless such employee has been informed by the employer of the provisions of [29 U.S.C. § 203(m)], and all tips received by such employee have been retained by the employee, except that this subsection shall not be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips.” 29 U.S.C. § 203(m)(2).
ANSWER: The allegations in Paragraph 71 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. Further, the FLSA and regulations speak for themselves. To the extent a response is required, Defendants deny the allegations and implications in Paragraph 71 of Plaintiffs’ First Amended
Complaint.
23 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 23 of 72 72. The federal regulations expand on the language of the FLSA by explaining as follows:
[A]n employer is not eligible to take the tip credit unless it has informed its tipped employees in advance of the employer’s use of the tip credit of the provisions of section 3(m) of the Act, i.e.: [1] The amount of the cash that is to be paid to the tipped employee by the employer; [2] the additional amount by which the wages of the tipped employee are increased on account of the tip credit claimed by the employer, which amount may not exceed the value of the tips actually received by the employee; [3] that all tips received by the tipped employee must be retained by the employee except for a valid tip pooling arrangement limited to employees who customarily and regularly receive tips; and [4] that the tip credit shall not apply to any employee who has not been informed of these requirements in this section.
29 C.F.R. § 531.59(b).
ANSWER: The allegations in Paragraph 72 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. Further, the FLSA and regulations speak for themselves. To the extent a response is required, Defendants deny the allegations and implications in Paragraph 72 of Plaintiffs’ First Amended
Complaint.
73. Defendants employ Plaintiff Allen, Plaintiff Sanchez, and other similarly situated tipped employees by paying a sub-minimum direct hourly wage, but failed to properly notify them of the tip credit requirements of the FLSA.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 73 of Plaintiffs’ First Amended Complaint.
74. Specifically, Plaintiff Allen, Plaintiff Sanchez, and other similarly situated tipped employees are not informed, in advance of Defendants’ use of the tip credit, of: (1) the amount of the cash that is to be paid to the tipped employee by Defendants; (2) the additional amount by which the wages of the tipped employee are increased on account of the tip credit claimed by Defendants; (3) that all tips received by the tipped employee must be retained by the employee except for a valid tip pooling arrangement limited to employees who customarily and regularly
24 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 24 of 72 receive tips; and/or (4) that the tip credit shall not apply to any employee who has not been informed of these requirements in this section.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 74 of Plaintiffs’ First Amended Complaint.
75. Because Defendants have failed to properly inform Plaintiff Allen, Plaintiff Sanchez, and other similarly situated tipped employees of the required tip credit provisions, Defendants have willfully violated state and/or federal law by failing and refusing to pay all minimum wages due and owing.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 75 of Plaintiffs’ First Amended Complaint.
Entitlement to the Tip Credit – Misallocation of Tip-Pool Funds
76. While the FLSA permits tip pools, such tip pools must be validly in place. Pursuant to the FLSA, several conditions must be met for a tip pool to be valid. The tip pool must only involve tipped employees, it must only apply to tips collected by the tipped employees, it cannot result in employees receiving a sub minimum wage, and the contributions to the tip pool must be customary and reasonable. 29 U.S.C. § 203(m), and Wage and Hour Division Field Operations Handbook at 30d04.
ANSWER: The allegations in Paragraph 76 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and implications in Paragraph 76 of
Plaintiffs’ First Amended Complaint.
77. Defendants employ Plaintiff Allen, Plaintiff Sanchez, and other similarly situated tipped employees, and those employees must participate in a tip pool. Employees who receive tips, contribute those tips into the tip pool. The tip pool funds are then divided up among those employees.
ANSWER: Defendants admit that Plaintiff Allen participates in a tip pool with other Table Games Dealers who work for Defendant River City pursuant to certain Toke
25 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 25 of 72 Committee bylaws the Table Games Dealers at River City developed consistent with
Missouri Gaming laws and regulations. Defendants further admit that Plaintiff Sanchez participates in a tip pool with other Table Games Dealers who work for Defendant
Ameristar pursuant to certain Toke Committee bylaws the Table Games Dealers at
Ameristar developed consistent with Missouri Gaming laws and regulations. Defendants deny the remaining allegations and implications in Paragraph 77 of Plaintiffs’ First
Amended Complaint.
78. However, Defendants failed to properly impose and manage the tip pool by allowing non-tipped employees and/or managers to participate in the tip pool. Specifically, a number of Defendants’ non-tipped and/or managerial employees unlawfully receive portions of their compensation from the tip pool.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 78 of Plaintiffs’ First Amended Complaint.
79. Because non-tipped and/or managerial employees receive money from the tip pool, Plaintiffs and the other similarly situated tipped employees do not receive that money, thus they do not receive the full amount of their tip pool compensation to which they are entitled.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 79 of Plaintiffs’ First Amended Complaint.
80. Because Defendants have failed to properly institute a valid tip pool and make unlawful distributions of the tip pool they are not entitled to a tip credit and Defendants have willfully violated federal and/or state law by failing and refusing to pay all minimum wages due and owing to Plaintiff Allen, Plaintiff Sanchez, and all other similarly situated employees.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 80 of Plaintiffs’ First Amended Complaint.
26 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 26 of 72 Failure to Pay Agreed-Upon PTO Benefits
81. Defendants entered into a contract with Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees through which they agreed that employees would accrue “paid time off” (“PTO”) for every hour worked based on the specific employee’s length of service with the company.
ANSWER: The allegations in Paragraph 81 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 81 of Plaintiffs’ First Amended Complaint.
82. Defendants also agreed that PTO “will be paid at the employee’s current regular rate of pay at the time it is taken.”
ANSWER: Defendants are without sufficient information at this time to identify the source of the quote set forth in Paragraph 82 of Plaintiffs’ First Amended Complaint and, accordingly, deny the allegations set forth in Paragraph 82.
83. Pursuant to state and federal law, the “regular rate of pay” is a term of art that must be, at a minimum, equal to or greater than the state and/or federally mandated minimum wage. Further, the “regular rate of pay” must be determined pursuant to federal regulations.
ANSWER: The allegations in Paragraph 83 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 83 of Plaintiffs’ First Amended Complaint.
84. Defendants breached this contract by failing to pay Plaintiff Allen, Plaintiff Sanchez, and all other similarly situated employees PTO hours at their then current regular rate of pay (as that term is defined under applicable state and/or federal law) at the time PTO was taken.
27 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 27 of 72 ANSWER: The allegations in Paragraph 84 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 84 of Plaintiffs’ First Amended Complaint.
85. Because of Defendants’ breach, Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees have been damaged.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 85 of Plaintiffs’ First Amended Complaint.
Misclassification of Floor Supervisors
86. Defendants classified Plaintiff Mesplay, Plaintiff Kobermann, and other similarly situated employees as exempt employees pursuant to the FLSA.
ANSWER: Defendants admit that Plaintiffs Mesplay and Kobermann are exempt employees under the FLSA. Defendants deny the remaining allegations and implications in
Paragraph 86 of Plaintiffs’ First Amended Complaint.
87. Plaintiff Mesplay’s, Plaintiff Kobermann’s, and other similarly situated employees’ primary duties did not involve the performance of exempt duties.
ANSWER: The allegations in Paragraph 87 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 87 of Plaintiffs’ First Amended Complaint.
88. Plaintiff Mesplay, Plaintiff Kobermann, and other similarly situated employees regularly suffered or were permitted to work by Defendants in excess of forty hours in a workweek without being compensated at the applicable legal rates in violation of the FLSA.
28 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 28 of 72 ANSWER: The allegations in Paragraph 88 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 88 of Plaintiffs’ First Amended Complaint.
89. Defendants failed, and continue to fail, to compensate these employees for all hours worked in excess of forty hours in a workweek. Doing so denies such persons compensation for straight time and overtime pay, and it is in direct violation of the FLSA, 29 U.S.C. § 201 et seq.
ANSWER: The allegations in Paragraph 89 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 89 of Plaintiffs’ First Amended Complaint.
90. Defendants’ conduct was willful in that they knew their payroll policies, practices, and/or procedures were in violation of the FLSA or they showed reckless disregard with respect to whether such policies, practices, and/or procedures were in violation of the FLSA.
ANSWER: The allegations in Paragraph 90 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 90 of Plaintiffs’ First Amended Complaint.
91. Defendants’ practices are in direct violation of the FLSA and Plaintiff Mesplay and Plaintiff Kobermann seek compensation on behalf of themselves and those similarly situated for work performed, straight time and overtime premiums for all overtime work required, suffered, or permitted by Defendants; liquidated and/or other damages as permitted by applicable law; and attorney’s fees, costs, and expenses incurred in this action.
ANSWER: The allegations in Paragraph 91 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a
29 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 29 of 72 response is required, Defendants deny each and every allegation and implication in
Paragraph 91 of Plaintiffs’ First Amended Complaint.
COLLECTIVE AND CLASS ACTION ALLEGATIONS
92. Plaintiffs re-allege the allegations set forth above.
ANSWER: Defendants incorporate their answers and additional responses set forth above.
93. Plaintiff Allen and Plaintiff Sanchez bring Count I, the FLSA claim arising out of Defendants’ unlawful time-clock rounding policy, as an “opt-in” collective action pursuant to 29 U.S.C. § 216(b) on behalf of themselves and the following collective:
a. FLSA Time-Clock Rounding Collective: All persons currently and formerly employed by Defendants in hourly positions who worked at any time during the last three (3) years within the United States.
ANSWER: Defendants admit Plaintiffs purport to bring Count I as described, but deny they engaged in any unlawful conduct, deny the classes described (or any classes) are proper, and deny that any collective or class action is proper for certification
(conditional or otherwise). Defendants deny any further remaining allegations and implications in Paragraph 93 of Plaintiffs’ First Amended Complaint.
94. Plaintiff Allen and Plaintiff Sanchez bring Count II, the FLSA claim arising out of Defendants’ unlawful unpaid training policy, as an “opt-in” collective action pursuant to 29 U.S.C. § 216(b) on behalf of themselves and the following collective:
a. FLSA Unpaid Training Collective: All persons currently and formerly employed by Defendants in hourly positions who attended mandatory training courses for which they were not compensated at any time during the last three (3) years within the United States.
30 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 30 of 72 ANSWER: Defendants admit Plaintiffs purport to bring Count II as described, but deny they engaged in any unlawful conduct, deny the classes described (or any classes) are proper, and deny that any collective or class action is proper for certification
(conditional or otherwise). Defendants deny any further remaining allegations and implications in Paragraph 94 of Plaintiffs’ First Amended Complaint.
95. Plaintiff Allen and Plaintiff Sanchez bring Count III, the FLSA claim arising out of Defendants’ tip credit notification policy, as an “opt in” collective action pursuant to 29 U.S.C. § 216(b) on behalf of themselves and the following collective:
a. FLSA Unlawful Tip Credit Collective: All persons currently and formerly employed by Defendants in hourly positions paid a direct hourly wage that is below the applicable federal minimum wage rates who worked at any time during the last three (3) years within the United States.
ANSWER: Defendants admit Plaintiffs purport to bring Count III as described, but deny they engaged in any unlawful conduct, deny the classes described (or any classes) are proper, and deny that any collective or class action is proper for certification
(conditional or otherwise). Defendants deny any further remaining allegations and implications in Paragraph 95 of Plaintiffs’ First Amended Complaint.
96. Plaintiff Allen and Plaintiff Sanchez bring Count IV, the FLSA claim arising out of Defendants’ misallocated tip-pool funds, as an “opt in” collective action pursuant to 29 U.S.C. § 216(b) on behalf of themselves and the following collective:
a. FLSA Unlawful Tip Pool Collective: All persons currently and formerly employed by Defendants in hourly positions who worked at any time during the last three (3) years within the United States.
ANSWER: Defendants admit Plaintiffs purport to bring Count IV as described, but deny they engaged in any unlawful conduct, deny the classes described (or any classes)
31 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 31 of 72 are proper, and deny that any collective or class action is proper for certification
(conditional or otherwise). Defendants deny any further remaining allegations and implications in Paragraph 96 of Plaintiffs’ First Amended Complaint.
97. Plaintiff Mesplay and Plaintiff Kobermann bring Count V, the FLSA claim arising out of Defendants’ unlawful misclassification of Floor Supervisors, as an “opt-in” collective action pursuant to 29 U.S.C. § 216(b) on behalf of themselves and the following collective:
a. FLSA Misclassification Collective: All persons currently and formerly employed by Defendants as Floor Supervisors, or others with similar job titles, duties, and compensation structures, who were classified as exempt and denied compensation at a rate of one and one-half times their regular rate of pay for all hours worked in excess of forty in a workweek, who worked at any time during the last three (3) years within the United States.
ANSWER: Defendants admit Plaintiffs purport to bring Count V as described, but deny they engaged in any unlawful conduct, deny the classes described (or any classes) are proper, and deny that any collective or class action is proper for certification
(conditional or otherwise). Defendants deny any further remaining allegations and implications in Paragraph 97 of Plaintiffs’ First Amended Complaint.
98. Plaintiffs’ FLSA claims (Counts I-V) may be pursued by those who opt-in to this case, pursuant to 29 U.S.C. § 216(b).
ANSWER: Defendants admit Plaintiffs purport to bring Counts I-V as described, but deny they engaged in any unlawful conduct, deny the classes described (or any classes) are proper, and deny that any collective or class action is proper for certification
(conditional or otherwise). Defendants deny any further remaining allegations and implications in Paragraph 98 of Plaintiffs’ First Amended Complaint.
32 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 32 of 72 99. Plaintiffs, individually and on behalf of all others similarly situated, seek relief on a collective basis challenging Defendants’ above-described FLSA violations. The number and identity of other plaintiffs yet to opt-in and consent to be party plaintiffs may be determined from Defendants’ records, and potential opt-in plaintiffs may easily and quickly be notified of the pendency of this action.
ANSWER: Defendants admit Plaintiffs seek the relief described, but deny they engaged in any unlawful conduct and deny that any collective or class action is proper for certification. Defendants deny all remaining allegations and implications in Paragraph 99 of Plaintiffs’ First Amended Complaint.
100. Plaintiff Allen and Plaintiff Sanchez bring Count VI, the MMWL claim arising out of Defendants’ unlawful time-clock rounding policy, as a class action under Fed. R. Civ. P. 23, on behalf of themselves and the following class:
a. MMWL Time-Clock Rounding Class: All persons currently and formerly employed by Defendants in hourly positions who worked at any time during the last two (2) years within the State of Missouri.
ANSWER: Defendants admit Plaintiffs purport to bring Count VI as described, but deny they engaged in any unlawful conduct, deny the classes described (or any classes) are proper, and deny that any collective or class action is proper for certification
(conditional or otherwise). Defendants deny any further remaining allegations and implications in Paragraph 100 of Plaintiffs’ First Amended Complaint.
101. Plaintiff Allen and Plaintiff Sanchez bring Count VII, the MMWL claim arising out of Defendants’ unpaid training policy, as a class action under Fed. R. Civ. P. 23, on behalf of themselves and the following class:
a. MMWL Unpaid Training Class: All persons currently and formerly employed by Defendants in hourly positions who attended mandatory training courses for which they were not compensated at any time during the last two (2) years within the State of Missouri.
33 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 33 of 72 ANSWER: Defendants admit Plaintiffs purport to bring Count VII as described, but deny they engaged in any unlawful conduct, deny the classes described (or any classes) are proper, and deny that any collective or class action is proper for certification
(conditional or otherwise). Defendants deny any further remaining allegations and implications in Paragraph 101 of Plaintiffs’ First Amended Complaint.
102. Plaintiff Allen and Plaintiff Sanchez bring Count VIII, the MMWL claim arising out of Defendants’ tip credit notification policy, as a class action under Fed. R. Civ. P. 23, on behalf of themselves and the following class:
a. MMWL Unlawful Tip Credit Class: All persons currently and formerly employed by Defendants in hourly positions paid below the applicable state minimum wage rates who worked at any time during the last two (2) years within the State of Missouri.
ANSWER: Defendants admit Plaintiffs purport to bring Count VIII as described, but deny they engaged in any unlawful conduct, deny the classes described (or any classes) are proper, and deny that any collective or class action is proper for certification
(conditional or otherwise). Defendants deny any further remaining allegations and implications in Paragraph 102 of Plaintiffs’ First Amended Complaint.
103. Plaintiff Allen and Plaintiff Sanchez bring Count IX, the MMWL claim arising out of Defendants’ misallocated tip-pool funds, as a class action under Fed. R. Civ. P. 23, on behalf of themselves and the following class:
a. MMWL Unlawful Tip Pool Class: All persons currently and formerly employed by Defendants in hourly positions who were paid a direct wage that was less than the minimum wage and participated in a tip pool at any time during the last two (2) years within the State of Missouri.
ANSWER: Defendants admit Plaintiffs purport to bring Count IX as described, but deny they engaged in any unlawful conduct, deny the classes described (or any classes)
34 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 34 of 72 are proper, and deny that any collective or class action is proper for certification
(conditional or otherwise). Defendants deny any further remaining allegations and implications in Paragraph 103 of Plaintiffs’ First Amended Complaint.
104. Plaintiff Mesplay and Plaintiff Kobermann bring Count X, the MMWL claim arising out of Defendants’ unlawful misclassification of Floor Supervisors, as a class action under Fed. R. Civ. P. 23, on behalf of themselves and the following class:
a. MMWL Misclassification Class: All persons currently and formerly employed by Defendants as Floor Supervisors, and others with similar job titles, duties, and compensation structures, who were classified as exempt and denied compensation at a rate of one and one-half times their regular rate of pay for all hours worked in excess of forty in a workweek, who worked at any time during the last two (2) years within the State of Missouri.
ANSWER: Defendants admit Plaintiffs purport to bring Count X as described, but deny they engaged in any unlawful conduct, deny the classes described (or any classes) are proper, and deny that any collective or class action is proper for certification
(conditional or otherwise). Defendants deny any further remaining allegations and implications in Paragraph 104 of Plaintiffs’ First Amended Complaint.
105. Plaintiffs bring Count XI, the unjust enrichment/quantum meruit claim, as a class action under Fed. R. Civ. P. 23, on behalf of themselves and the following class:
a. Unjust Enrichment / Quantum Meruit Class: All persons currently and formerly employed by Defendants in hourly positions who worked at any time during the last five (5) years within the United States.
ANSWER: Defendants admit Plaintiffs purport to bring Count XI as described, but deny they engaged in any unlawful conduct, deny the classes described (or any classes) are proper, and deny that any collective or class action is proper for certification
35 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 35 of 72 (conditional or otherwise). Defendants deny any further remaining allegations and implications in Paragraph 105 of Plaintiffs’ First Amended Complaint.
106. Plaintiffs bring Count XII, the breach of contract claim, as a class action under Fed. R. Civ. P. 23, on behalf of themselves and the following class:
a. Breach of Contract Class: All persons currently and formerly employed by Defendants in hourly positions who worked at any time during the last five (5) years within the United States.
ANSWER: Defendants admit Plaintiffs purport to bring Count XII as described, but deny they engaged in any unlawful conduct, deny the classes described (or any classes) are proper, and deny that any collective or class action is proper for certification
(conditional or otherwise). Defendants deny any further remaining allegations and implications in Paragraph 106 of Plaintiffs’ First Amended Complaint.
107. Plaintiffs’ MMWL claims (Count V-X), unjust enrichment/quantum meruit claim (Count XI), and breach of contract claims (Count XII) described in detail below, satisfy the numerosity, commonality, typicality, adequacy, and superiority requirements of a class action pursuant to Fed. R. Civ. P. 23.
ANSWER: The allegations in Paragraph 107 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 107 of Plaintiffs’ First Amended Complaint.
108. These classes each potentially number in the hundreds or thousands of persons. As a result, joinder of all class members in a single action is impracticable. Class members may be informed of the pendency of this action through regular mail, e-mail, and/or posting of an approved notice.
36 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 36 of 72 ANSWER: The allegations in Paragraph 108 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 108 of Plaintiffs’ First Amended Complaint.
109. There are common questions of fact and law to the classes that predominate over any questions affecting only individual class members. The questions of law and fact common to the classes arising from Defendants’ actions include, without limitation, the following:
a. Whether Defendants violated the law when they failed to pay Plaintiffs and class members for all hours worked; b. Whether Defendants had policies and practices of failing to compensate Plaintiffs and class members for all time worked; c. Whether Defendants failed to pay Plaintiffs and class members overtime compensation required under R.S.Mo § 290.500 et seq.; d. Whether Defendants were unjustly enriched by virtue of their policies and practices with respect to Plaintiffs’ and class members’ pay; e. Whether Defendants failed to properly inform their hourly employees being paid sub-minimum wage rates of the requirements for the tip credit; f. Whether Defendants misallocated tip pool funds, failed to validly institute the tip pool, and/or failed to properly manage the tip pool; g. Whether Defendants misclassified their Floor Supervisors as exempt and failed to properly compensate those employees for all hours worked; h. Whether Defendants willfully violated state and federal wage and hour laws; and i. Whether Defendants maintained a lawful timekeeping system.
ANSWER: The allegations in Paragraph 109 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 109 of Plaintiffs’ First Amended Complaint.
110. The questions set forth above predominate over any questions affecting only individual persons, and a class action is superior with respect to considerations of consistency,
37 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 37 of 72 economy, efficiency, fairness, and equity to other available methods for the fair and efficient adjudication of the state law claims.
ANSWER: The allegations in Paragraph 110 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 110 of Plaintiffs’ First Amended Complaint.
111. Plaintiffs’ claims are typical of those of the respective classes in that class members have been employed in the same or similar positions as Plaintiffs and were subject to the same or similar unlawful practices as the Plaintiffs.
ANSWER: The allegations in Paragraph 111 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 111 of Plaintiffs’ First Amended Complaint.
112. A class action is the superior method for the fair and efficient adjudication to Plaintiffs’ claims. Defendants have acted or refused to act on grounds generally applicable to the classes. The presentation of separate actions by individual class members could create a risk of inconsistent and varying adjudications, establish incompatible standards of conduct for Defendants, and/or substantially impair or impede the ability of class members to protect their interests.
ANSWER: The allegations in Paragraph 112 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 112 of Plaintiffs’ First Amended Complaint.
113. Plaintiffs are adequate representatives because they are members of the respective classes they seek to represent, and their interests do not conflict with the interests of the members of those classes. The interests of the members of the classes will be fairly and adequately
38 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 38 of 72 protected by Plaintiffs and their undersigned counsel, who are experienced prosecuting complex wage and hour, employment, and class action litigation.
ANSWER: The allegations in Paragraph 113 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 113 of Plaintiffs’ First Amended Complaint.
114. Maintenance of this action is a class action is a fair and efficient method for adjudication of this controversy. It would be impracticable and undesirable for each member of the classes who suffered harm to bring a separate action. In addition, the maintenance of separate actions would place a substantial and unnecessary burden on the courts and could result in inconsistent adjudications, while a single class action can determine, with judicial economy, the rights of all class members.
ANSWER: The allegations in Paragraph 114 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 114 of Plaintiffs’ First Amended Complaint.
ALLEGATIONS APPLICABLE TO ALL FLSA CLAIMS (COUNTS I-V)
115. At all times material herein, Plaintiffs and all others similarly situated have been entitled to the rights, protections, and benefits provided under the FLSA, 29 U.S.C. §§ 201, et seq.
ANSWER: The allegations in Paragraph 115 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 115 of Plaintiffs’ First Amended Complaint.
39 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 39 of 72 116. The FLSA regulates, among other things, the payment of minimum wage and overtime pay by employers whose employees are engaged in interstate commerce, or engaged in the production of goods for commerce, or employed in an enterprise engaged in commerce or in the production of goods for commerce. 29 U.S.C. § 206(a); 29 U.S.C. § 207(a)(1).
ANSWER: The allegations in Paragraph 116 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 116 of Plaintiffs’ First Amended Complaint.
117. Defendants are subject to the minimum wage and overtime pay requirements of the FLSA because they are enterprises engaged in interstate commerce and their employees are engaged in commerce.
ANSWER: The allegations in Paragraph 117 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 117 of Plaintiffs’ First Amended Complaint.
118. During all relevant times to this action, Defendants were the “employers” of Plaintiffs and all similarly situated employees within the meaning of the FLSA. 29 U.S.C. § 203(d).
ANSWER: The allegations in Paragraph 118 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and implications in Paragraph 118 of
Plaintiffs’ First Amended Complaint.
119. During all times relevant to this action, Plaintiffs and all similarly situated employees were Defendants’ “employees” within the meaning of the FLSA. 29 U.S.C. § 203(e).
40 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 40 of 72 ANSWER: The allegations in Paragraph 119 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and implications in Paragraph 119 of
Plaintiffs’ First Amended Complaint.
120. Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees are covered, non-exempt employees within the meaning of the FLSA. Accordingly, these Plaintiffs and all similarly situated employees must be paid minimum wages in accordance with 29 U.S.C. § 206.
ANSWER: Defendants admit Plaintiffs Allen and Sanchez are non-exempt employees who work for Defendants River City and Ameristar, respectively. The remaining allegations in Paragraph 120 of Plaintiffs’ First Amended Complaint contain legal conclusions to which no response is required. To the extent a response is required,
Defendants deny the remaining allegations and implications in Paragraph 120 of Plaintiffs’
First Amended Complaint.
121. Pursuant to the FLSA, employees are also entitled to be compensated at a rate of not less than one and one-half times the regular rate at which such employees are employed for all work performed in excess of 40 hours in a workweek. 29 U.S.C. § 207(a).
ANSWER: The allegations in Paragraph 121 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 121 of Plaintiffs’ First Amended Complaint.
122. Although the FLSA contains some exceptions (or exemptions) from the minimum wage and overtime requirements, none of those exceptions (or exemptions) apply to Plaintiff Allen, Plaintiff Sanchez, Plaintiff Mesplay, Plaintiff Kobermann, or other similarly situated employees.
41 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 41 of 72 ANSWER: The allegations in Paragraph 122 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and implications in Paragraph 122 of
Plaintiffs’ First Amended Complaint.
123. Plaintiffs and all similarly situated employees are victims of uniform and nationwide compensation policies. Based on information and belief, Defendants are applying the same unlawful compensation policies to all similarly situated employees in their gaming and entertainment facilities nationwide.
ANSWER: The allegations in Paragraph 123 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and implications in Paragraph 123 of
Plaintiffs’ First Amended Complaint.
124. Plaintiffs and all similarly situated employees are entitled to damages equal to the mandated minimum wage and overtime premium pay within the three (3) years preceding the filing of this Complaint, plus periods of equitable tolling, because Defendants acted willfully and knew, or showed reckless disregard of whether their conduct was prohibited by the FLSA.
ANSWER: The allegations in Paragraph 124 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and implications in Paragraph 124 of
Plaintiffs’ First Amended Complaint.
125. Defendants have acted neither in good faith nor with reasonable grounds to believe that their actions and omissions were not a violation of the FLSA, and as a result, Plaintiffs and other similarly situated employees are entitled to recover an award of liquidated damages in an amount equal to the amount of unpaid wages as described by Section 16(b) of the FLSA, codified at 29 U.S.C. § 216(b). Alternatively, should the Court find Defendants acted in good faith or with reasonable grounds in failing to pay minimum wage and overtime compensation,
42 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 42 of 72 Plaintiffs and all similarly situated employees are entitled to an award of prejudgment interest at the applicable legal rate.
ANSWER: The allegations in Paragraph 125 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and implications in Paragraph 125 of
Plaintiffs’ First Amended Complaint.
126. As a result of these violations of the FLSA’s minimum wage and overtime pay provisions, compensation has been unlawfully withheld by Defendants from Plaintiffs and all similarly situated employees. Accordingly, pursuant to 29 U.S.C. § 216(b), Defendants are liable for the unpaid minimum wages and overtime premium pay along with an additional amount as liquidated damages, pre-judgment and post-judgment interest, reasonable attorneys’ fees, and costs of this action.
ANSWER: The allegations in Paragraph 126 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and implications in Paragraph 126 of
Plaintiffs’ First Amended Complaint.
ALLEGATIONS APPLICABLE TO ALL MMWL CLAIMS (COUNTS VI-X)
127. At all times relevant, Plaintiffs and the class members have been entitled to the rights, protections, and benefits provided under the Missouri Minimum Wage Law (“MMWL”), R.S.Mo. § 290.500 et seq.
ANSWER: The allegations in Paragraph 127 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and implications in Paragraph 127 of
Plaintiffs’ First Amended Complaint.
43 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 43 of 72 128. The MMWL regulates, among other things, the payment of minimum wage and overtime wages by employers, subject to limited exceptions not applicable herein.
ANSWER: The allegations in Paragraph 128 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and implications in Paragraph 128 of
Plaintiffs’ First Amended Complaint.
129. The MMWL should be construed in accordance with its provisions and those of the FLSA. Specifically, the Missouri Department of Labor has promulgated regulations providing that except as otherwise provided by Missouri law, the interpretation and enforcement of the MMWL follows the FLSA and its companion regulations. See 8 C.S.R. § 30-4.010(1).
ANSWER: The allegations in Paragraph 129 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and implications in Paragraph 129 of
Plaintiffs’ First Amended Complaint.
130. During all times relevant to this action, Defendants were the “employers” of Plaintiffs and the class members within the meaning of the MMWL. R.S.Mo. §§ 290.500(3), (4).
ANSWER: The allegations in Paragraph 130 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and implications in Paragraph 130 of
Plaintiffs’ First Amended Complaint.
131. During all times relevant to this action, Plaintiffs and the class members were Defendants’ “employees” within the meaning of the MMWL. R.S.Mo. §§ 290.500(3).
ANSWER: The allegations in Paragraph 131 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a
44 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 44 of 72 response is required, Defendants deny the allegations and implications in Paragraph 131 of
Plaintiffs’ First Amended Complaint.
132. Plaintiffs and the class members are covered, non-exempt employees within the meaning of the MMWL. Accordingly, employees are entitled to be paid at least minimum wage for all hours worked in each workweek. R.S.Mo. § 290.502.1.
ANSWER: The allegations in Paragraph 132 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and implications in Paragraph 132 of
Plaintiffs’ First Amended Complaint.
133. Pursuant to the MMWL, employees are also entitled to be compensated at a rate of not less than one and one-half times the regular rate at which such employees are employed for all work performed in excess of forty (40) hours in a workweek. R.S.Mo. § 290.505.1.
ANSWER: The allegations in Paragraph 133 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and implications in Paragraph 133 of
Plaintiffs’ First Amended Complaint.
134. Although the MMWL contains some exceptions (or exemptions) from the minimum wage and overtime pay obligations, none of those exceptions (or exemptions) apply here. R.S.Mo. § 290.500(3).
ANSWER: The allegations in Paragraph 134 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and implications in Paragraph 134 of
Plaintiffs’ First Amended Complaint.
45 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 45 of 72 135. Plaintiffs and the class members are victims of uniform and employer-based compensation policies. Based on information and belief, Defendants are applying the same unlawful compensation policies to Plaintiffs and the class members in their gaming and entertainment facilities in the State of Missouri.
ANSWER: The allegations in Paragraph 135 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 135 of Plaintiffs’ First Amended Complaint.
136. Plaintiffs and the Class are entitled to damages equal to all unpaid regular and overtime wages due within two (2) years preceding the filing of this Complaint, plus periods of equitable tolling, along with an additional equal amount as liquidated damages, less any amount actually paid to the employees by Defendants. R.S.Mo. § 290.527.
ANSWER: The allegations in Paragraph 136 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 136 of Plaintiffs’ First Amended Complaint.
137. Plaintiffs and the Class are also entitled to an award of pre-judgment and post- judgment interest at the applicable legal rate.
ANSWER: The allegations in Paragraph 137 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 137 of Plaintiffs’ First Amended Complaint.
138. Defendants are also liable to Plaintiffs and the Class for costs and reasonable attorney fees incurred in this action. R.S.Mo. § 290.527.
46 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 46 of 72 ANSWER: The allegations in Paragraph 138 of Plaintiffs’ First Amended
Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny each and every allegation and implication in
Paragraph 138 of Plaintiffs’ First Amended Complaint.
COUNT I - FLSA (Unpaid Overtime & Minimum Wages) Arising Out of Defendants’ Unlawful Time-Clock Rounding Policy
(Brought Against Defendants by Plaintiff Allen and Plaintiff Sanchez, Individually, and on Behalf of All Others Similarly Situated)
139. Plaintiffs re-allege the allegations set forth above.
ANSWER: Defendants incorporate their answers and additional responses set forth above.
140. Defendants violated the FLSA by failing to pay Plaintiffs and all other similarly situated employees for all compensable hours worked at the legal and applicable wage rates for all hours worked in a workweek.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 140 of Plaintiffs’ First Amended Complaint.
141. Specifically, as discussed above, Defendants utilize an unlawful rounding policy that, when combined with their disciplinary policies, forces employees to work off-the-clock without being paid at the legal and applicable wage rates for both straight and overtime hours.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 141 of Plaintiffs’ First Amended Complaint.
142. Defendants’ practice was to unlawfully and willfully fail to properly pay their hourly employees for all hours worked.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 142 of Plaintiffs’ First Amended Complaint.
47 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 47 of 72 WHEREFORE, on Count I of this Complaint, Plaintiff Allen, Plaintiff Sanchez and all similarly situated employees demand judgment against Defendants and pray this Court:
a. Issue notice to all similarly situated employees of Defendants informing them of their right to file consents to join the FLSA portion of this action; b. Award Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees damages for unpaid minimum wages and unpaid overtime wages under 29 U.S.C. § 216(b); c. Award Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees liquidated damages under 29 U.S.C. § 216(b); d. Award Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees pre-judgment and post-judgment interest as provided by law; e. Award Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees attorneys’ fees and costs under 29 U.S.C. § 216(b); and f. Award Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees such other relief as the Court deems fair and equitable.
ANSWER: WHEREFORE, Defendants respectfully request that this Court enter judgment in their favor, that Plaintiffs take nothing thereby, and that this Court award
Defendants any and all further relief that this Court deems appropriate.
COUNT II - FLSA (Unpaid Overtime & Minimum Wages)
Arising Out of Defendants’ Unpaid Training Policy
(Brought Against Defendants by Plaintiff Allen, Plaintiff Sanchez, Individually, and on Behalf of All Others Similarly Situated) 143. Plaintiffs re-allege the allegations set forth above.
ANSWER: Defendants incorporate their answers and additional responses set forth above.
144. Defendants violated the FLSA by failing to pay Plaintiff Allen, Plaintiff Sanchez, and all other similarly situated employees for all compensable hours worked at the legal and applicable wage rates for all hours worked in a workweek.
48 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 48 of 72 ANSWER: Defendants deny each and every allegation and implication in
Paragraph 144 of Plaintiffs’ First Amended Complaint.
145. Specifically, as discussed above, Defendants forced their hourly employees to attend unpaid training classes as part of their policy of mandatory and ongoing training.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 145 of Plaintiffs’ First Amended Complaint.
146. Defendants’ practice was to unlawfully and willfully fail to properly pay their hourly employees for all hours worked by forcing their employees to work off-the-clock by attending such unpaid training classes.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 146 of Plaintiffs’ First Amended Complaint.
WHEREFORE, on Count II of this Complaint, Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees demand judgment against Defendants and pray this Court:
a. Issue notice to all similarly situated employees of Defendants informing them of their right to file consents to join the FLSA portion of this action; b. Award Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees damages for unpaid minimum wages and unpaid overtime wages under 29 U.S.C. § 216(b); c. Award Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees liquidated damages under 29 U.S.C. § 216(b); d. Award Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees pre-judgment and post-judgment interest as provided by law; e. Award Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees attorneys’ fees and costs under 29 U.S.C. § 216(b); and f. Award Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees such other relief as the Court deems fair and equitable.
ANSWER: WHEREFORE, Defendants respectfully request that this Court enter judgment in their favor, that Plaintiffs take nothing thereby, and that this Court award
Defendants any and all further relief that this Court deems appropriate.
49 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 49 of 72 COUNT III - FLSA (Unpaid Minimum Wages)
Arising Out of Defendants’ Tip Credit Notification Policy
(Brought Against Defendants by Plaintiff Allen, Plaintiff Sanchez, Individually, and on Behalf of All Others Similarly Situated) 147. Plaintiffs re-allege the allegations set forth above.
ANSWER: Defendants incorporate their answers and additional responses set forth above.
148. Defendants violated the FLSA by failing to pay Plaintiff Allen, Plaintiff Sanchez, and all others similarly situated minimum wages for all hours worked in a workweek.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 148 of Plaintiffs’ First Amended Complaint.
149. Specifically, Defendants paid Plaintiff Allen, Plaintiff Sanchez, and others similarly situated below the federal minimum wage rate without complying with the “tip credit” rules required for an employer to pay less than the federal minimum wage.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 149 of Plaintiffs’ First Amended Complaint.
150. In particular, Plaintiff Allen, Plaintiff Sanchez, and other similarly situated tipped employees were not informed, in advance of Defendants’ use of the tip credit, of: (1) the amount of the cash that is to be paid to the tipped employee by Defendants; (2) the additional amount by which the wages of the tipped employee are increased on account of the tip credit claimed by Defendants; (3) that all tips received by the tipped employee must be retained by the employee except for a valid tip pooling arrangement limited to employees who customarily and regularly receive tips; and/or (4) that the tip credit shall not apply to any employee who has not been informed of these requirements in this section.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 150 of Plaintiffs’ First Amended Complaint.
50 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 50 of 72 151. As Defendants have failed to properly inform Plaintiff Allen, Plaintiff Sanchez, and other similarly situated tipped employees of the required tip credit provisions and are not entitled to claim a tip credit, Defendants have willfully violated state and/or federal law by failing and refusing to pay all minimum wages due and owing to Plaintiffs and other similarly situated employees.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 151 of Plaintiffs’ First Amended Complaint.
152. Defendants’ practice was to unlawfully and willfully fail to comply with the requirements for their entitlement to a tip credit and therefore, Plaintiff Allen, Plaintiff Sanchez, and the similarly situated tipped employees were not properly paid minimum wages pursuant to the FLSA.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 152 of Plaintiffs’ First Amended Complaint.
WHEREFORE, on Count III of this Complaint, Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees demand judgment against Defendants and pray this Court:
a. Issue notice to all similarly situated employees of Defendants informing them of their right to file consents to join the FLSA portion of this action; b. Award Plaintiffs and all similarly situated employees damages for unpaid overtime wages under 29 U.S.C. § 216(b); c. Award Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees liquidated damages under 29 U.S.C. § 216(b); d. Award Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees pre-judgment and post-judgment interest as provided by law; e. Award Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees attorneys’ fees and costs under 29 U.S.C. § 216(b); and f. Award Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees such other relief as the Court deems fair and equitable.
ANSWER: WHEREFORE, Defendants respectfully request that this Court enter judgment in their favor, that Plaintiffs take nothing thereby, and that this Court award
Defendants any and all further relief that this Court deems appropriate.
51 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 51 of 72 COUNT IV - FLSA (Unpaid Minimum Wages)
Arising Out of Defendants’ Misallocation of Tip Pool Funds
(Brought Against Defendants by Plaintiffs, Individually, and on Behalf of All Others Similarly Situated) 153. Plaintiffs re-allege the allegations set forth above.
ANSWER: Defendants incorporate their answers and additional responses set forth above.
154. Defendants violated the FLSA by implementing and maintaining an invalid tip pool, thus failing to pay Plaintiffs and other similarly situated employees all of the tips to which they were entitled.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 154 of Plaintiffs’ First Amended Complaint.
155. Specifically, Defendants includes non-tipped and/or managerial employees in the tip pool participation. Because those employees receive portions of the tip pool which Plaintiffs and the similarly situated employees are entitled to, Plaintiff Allen, Plaintiff Sanchez, and the similarly situated employees do not receive all of the compensation to which they are entitled.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 155 of Plaintiffs’ First Amended Complaint.
156. Defendants’ practice was to unlawfully and willfully fail to comply with the requirements of implementing and implementing a valid tip pool and therefore, Plaintiff Allen, Plaintiff Sanchez, and the similarly situated tipped employees were not properly compensated pursuant to the FLSA.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 156 of Plaintiffs’ First Amended Complaint.
WHEREFORE, on Count IV of this Complaint, Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees demand judgment against Defendants and pray this Court:
52 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 52 of 72 a. Issue notice to all similarly situated employees of Defendants informing them of their right to file consents to join the FLSA portion of this action; c. Award Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees damages for unpaid wages and/or tips under 29 U.S.C. § 216(b); Award Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees liquidated damages under 29 U.S.C. § 216(b); d. Award Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees pre-judgment and post-judgment interest as provided by law; e. Award Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees attorneys’ fees and costs under 29 U.S.C. § 216(b); and f. Award Plaintiff Allen, Plaintiff Sanchez, and all similarly situated employees such other relief as the Court deems fair and equitable.
ANSWER: WHEREFORE, Defendants respectfully request that this Court enter judgment in their favor, that Plaintiffs take nothing thereby, and that this Court award
Defendants any and all further relief that this Court deems appropriate.
COUNT V – FLSA (Misclassification)
Arising Out of Defendants’ Misclassification of Floor Supervisors
(Brought Against Defendants by Plaintiff Mesplay and Plaintiff Kobermann, Individually, and on Behalf of All Others Similarly Situated)
157. Plaintiffs re-allege the allegations as set forth above.
ANSWER: Defendants incorporate their answers and additional responses set forth above.
158. Defendants misclassified Plaintiff Mesplay, Plaintiff Kobermann, and all other similarly situated employees as employees exempt from the overtime provisions of the FLSA.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 158 of Plaintiffs’ First Amended Complaint.
159. Plaintiff Mesplay, Plaintiff Kobermann, and all other similarly situated employees regularly worked, and were not compensated for hours over forty in a workweek.
53 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 53 of 72 ANSWER: Defendants deny each and every allegation and implication in
Paragraph 159 of Plaintiffs’ First Amended Complaint.
160. Defendants violated the FLSA by failing to pay Plaintiff Mesplay, Plaintiff Kobermann, and all other similarly situated employees for all compensable hours worked at the legal and applicable wage rates for all hours worked in a workweek.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 160 of Plaintiffs’ First Amended Complaint.
161. Defendants’ practice was to unlawfully and willfully fail to properly pay their hourly employees for all hours worked.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 161 of Plaintiffs’ First Amended Complaint.
WHEREFORE, on Count V of this Complaint, Plaintiff Mesplay, Plaintiff Kobermann and all similarly situated employees demand judgment against Defendants and pray this Court:
a. Issue notice to all similarly situated employees of Defendants informing them of their right to file consents to join the FLSA portion of this action; b. Award Plaintiff Mesplay, Plaintiff Kobermann, and all similarly situated employees damages for unpaid wages and/or tips under 29 U.S.C. § 216(b); c. Award Plaintiff Mesplay, Plaintiff Kobermann, and all similarly situated employees liquidated damages under 29 U.S.C. § 216(b); d. Award Plaintiff Mesplay, Plaintiff Kobermann, and all similarly situated employees pre-judgment and post-judgment interest as provided by law; e. Award Plaintiff Mesplay, Plaintiff Kobermann, and all similarly situated employees attorneys’ fees and costs under 29 U.S.C. § 216(b); and f. Award Plaintiff Mesplay, Plaintiff Kobermann, and all similarly situated employees such other relief as the Court deems fair and equitable.
ANSWER: WHEREFORE, Defendants respectfully request that this Court enter judgment in their favor, that Plaintiffs take nothing thereby, and that this Court award
Defendants any and all further relief that this Court deems appropriate.
54 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 54 of 72 COUNT VI – MMWL (Unpaid Overtime & Minimum Wages)
Arising Out of Defendants’ Unlawful Rounding Policy
(Brought Against Defendants by Plaintiff Allen and Plaintiff Sanchez, Individually, and on Behalf of All Others Similarly Situated)
162. Plaintiffs re-allege the allegations as set forth above.
ANSWER: Defendants incorporate their answers and additional responses set forth above.
163. Defendants violated the MMWL by failing to pay Plaintiff Allen, Plaintiff Sanchez, and all other similarly situated employees for all compensable hours worked at the legal and applicable wage rates for all hours worked in a workweek.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 163 of Plaintiffs’ First Amended Complaint.
164. Specifically, as discussed above, Defendants utilize an unlawful rounding policy that, when combined with their disciplinary policies, forces employees to work off-the-clock without being paid at the legal and applicable wage rates for both straight and overtime hours.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 164 of Plaintiffs’ First Amended Complaint.
165. Defendants’ practice was to unlawfully and willfully fail to properly pay their hourly employees for all hours worked.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 165 of Plaintiffs’ First Amended Complaint.
WHEREFORE, on Count VI of this Complaint, Plaintiff Allen, Plaintiff Sanchez and the Class demand judgment against Defendants and pray this Court:
a. Certify the state law claim set forth in Count VI above as a class action pursuant to Fed. R. Civ. P. 23;
55 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 55 of 72 b. Award Plaintiff Allen, Plaintiff Sanchez, and the Class damages for unpaid minimum wages and unpaid overtime wages under R.S.Mo. § 290.527; c. Award Plaintiff Allen, Plaintiff Sanchez, and the Class liquidated damages under R.S.Mo. § 290.527; d. Award Plaintiff Allen, Plaintiff Sanchez, and the Class pre-judgment and post-judgment interest as provided by law; e. Award Plaintiff Allen, Plaintiff Sanchez, and the Class attorneys’ fees and costs as allowed by R.S.Mo. § 290.527; and f. Award Plaintiff Allen, Plaintiff Sanchez, and the Class such other relief as the Court deems fair and equitable.
ANSWER: WHEREFORE, Defendants respectfully request that this Court enter judgment in their favor, that Plaintiffs take nothing thereby, and that this Court award
Defendants any and all further relief that this Court deems appropriate.
COUNT VII – MMWL (Unpaid Overtime & Minimum Wages)
Arising Out of Defendants’ Unpaid Training Policy
(Brought Against Defendants by Plaintiff Allen and Plaintiff Sanchez, Individually, and on Behalf of All Others Similarly Situated)
166. Plaintiffs re-alleges the allegations as set forth above.
ANSWER: Defendants incorporate their answers and additional responses set forth above.
167. Defendants violated the MMWL by failing to pay Plaintiff Allen, Plaintiff Sanchez, and all other similarly situated employees for all compensable hours worked at the legal and applicable wage rates for all hours worked in a workweek.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 167 of Plaintiffs’ First Amended Complaint.
168. Specifically, as discussed above, Defendants forced their hourly employees to attend unpaid training classes as part of their policy of mandatory and ongoing training.
56 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 56 of 72 ANSWER: Defendants deny each and every allegation and implication in
Paragraph 168 of Plaintiffs’ First Amended Complaint.
169. Defendants’ practice was to unlawfully and willfully fail to properly pay their hourly employees for all hours worked by forcing their employees to work off-the-clock by attending such unpaid training classes.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 169 of Plaintiffs’ First Amended Complaint.
WHEREFORE, on Count VII of this Complaint, Plaintiff Allen, Plaintiff Sanchez, and the Class demand judgment against Defendants and pray this Court:
a. Certify the state law claim set forth in Count VII above as a class action pursuant to Fed. R. Civ. P. 23; b. Award Plaintiff Allen, Plaintiff Sanchez, and the Class damages for unpaid minimum wages and unpaid overtime wages under R.S.Mo. § 290.527; c. Award Plaintiff Allen, Plaintiff Sanchez, and the Class liquidated damages under R.S.Mo. § 290.527; d. Award Plaintiff Allen, Plaintiff Sanchez, and the Class pre-judgment and post-judgment interest as provided by law; e. Award Plaintiff Allen, Plaintiff Sanchez, and the Class attorneys’ fees and costs as allowed by R.S.Mo. § 290.527; and f. Award Plaintiff Allen, Plaintiff Sanchez, and the Class such other relief as the Court deems fair and equitable.
ANSWER: WHEREFORE, Defendants respectfully request that this Court enter judgment in their favor, that Plaintiffs take nothing thereby, and that this Court award
Defendants any and all further relief that this Court deems appropriate.
COUNT VIII – MMWL (Unpaid Minimum Wages)
Arising Out of Defendants’ Tip Credit Notification Policy
(Brought Against Defendants by Plaintiff Allen and Plaintiff Sanchez, Individually, and on Behalf of All Others Similarly Situated)
57 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 57 of 72 170. Plaintiffs re-allege the allegations as set forth above.
ANSWER: Defendants incorporate their answers and additional responses set forth above.
171. Defendants violated the MMWL by failing to pay Plaintiff Allen, Plaintiff Sanchez, and all others similarly situated minimum wages for all hours worked in a workweek.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 171 of Plaintiffs’ First Amended Complaint.
172. Specifically, Defendants paid Plaintiff Allen, Plaintiff Sanchez, and all others similarly situated below the state minimum wage rate without complying with the “tip credit” rules required for an employer to pay less than the state minimum wage.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 172 of Plaintiffs’ First Amended Complaint.
173. In particular, Defendants failed to comply with the notification requirements set forth within the express language of the FLSA and supporting federal regulations, which are controlling within the context of the MMWL.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 173 of Plaintiffs’ First Amended Complaint.
174. In particular, Plaintiff Allen, Plaintiff Sanchez, and other similarly situated tipped employees were not informed, in advance of Defendants’ use of the tip credit, of: (1) the amount of the cash that is to be paid to the tipped employee by Defendants; (2) the additional amount by which the wages of the tipped employee are increased on account of the tip credit claimed by Defendants; (3) that all tips received by the tipped employee must be retained by the employee except for a valid tip pooling arrangement limited to employees who customarily and regularly receive tips; and/or (4) that the tip credit shall not apply to any employee who has not been informed of these requirements in this section.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 174 of Plaintiffs’ First Amended Complaint.
58 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 58 of 72 175. As Defendants have failed to properly inform Plaintiff Allen, Plaintiff Sanchez, and other similarly situated tipped employees of the required tip credit provisions and are not entitled to claim a tip credit, Defendants have willfully violated state law by failing and refusing to pay all minimum wages due and owing to Plaintiff Allen, Plaintiff Sanchez, and other similarly situated employees.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 175 of Plaintiffs’ First Amended Complaint.
176. Defendants’ practice was to unlawfully and willfully fail to comply with the requirements for their entitlement to a tip credit and therefore, Plaintiff Allen, Plaintiff Sanchez, and the similarly situated tipped employees were not properly paid minimum wages pursuant to the MMWL.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 176 of Plaintiffs’ First Amended Complaint.
WHEREFORE, on Count VIII of this Complaint, Plaintiff Allen, Plaintiff Sanchez, and the Class demand judgment against Defendants and pray this Court:
a. Certify the state law claim set forth in Count VIII above as a class action pursuant to Fed. R. Civ. P. 23; b. Award Plaintiff Allen, Plaintiff Sanchez, and the Class damages for unpaid overtime wages under R.S.Mo. § 290.527; c. Award Plaintiff Allen, Plaintiff Sanchez, and the Class liquidated damages under R.S.Mo. § 290.527; d. Award Plaintiff Allen, Plaintiff Sanchez, and the Class pre-judgment and post-judgment interest as provided by law; e. Award Plaintiff Allen, Plaintiff Sanchez, and the Class attorneys’ fees and costs as allowed by R.S.Mo. § 290.527; and f. Award Plaintiff Allen, Plaintiff Sanchez, and the Class such other relief as the Court deems fair and equitable.
ANSWER: WHEREFORE, Defendants respectfully request that this Court enter judgment in their favor, that Plaintiffs take nothing thereby, and that this Court award
Defendants any and all further relief that this Court deems appropriate.
59 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 59 of 72 COUNT IX - MMWL (Unpaid Wages)
Arising Out of Defendants’ Misallocation of Tip Pool Funds
(Brought Against Defendants by Plaintiff Allen and Plaintiff Sanchez Individually and on Behalf of All Others Similarly Situated) 177. Plaintiffs re-allege the allegations set forth above.
ANSWER: Defendants incorporate their answers and additional responses set forth above.
178. Defendants violated the MMWL by implementing and maintaining an invalid tip pool, thus failing to pay Plaintiff Allen, Plaintiff Sanchez, and other similarly situated employees all of the tips to which they were entitled.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 178 of Plaintiffs’ First Amended Complaint.
179. Specifically, Defendants includes non-tipped and/or managerial employees in the tip pool participation. Because those employees receive portions of the tip pool which Plaintiff Allen, Plaintiff Sanchez, and the similarly situated employees are entitled to, these employees do not receive all of the compensation to which they are entitled.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 179 of Plaintiffs’ First Amended Complaint.
180. Defendants’ practice was to unlawfully and willfully fail to comply with the requirements of implementing and implementing a valid tip pool and therefore, MMWL and the similarly situated tipped employees were not properly compensated pursuant to the FLSA.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 180 of Plaintiffs’ First Amended Complaint.
WHEREFORE, on Count IX of this Complaint, Plaintiff Allen, Plaintiff Sanchez, and the Class demand judgment against Defendants and pray this Court:
60 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 60 of 72 a. Certify the state law claim set forth in Count IX above as a class action pursuant to Fed. R. Civ. P. 23; b. Award Plaintiff Allen, Plaintiff Sanchez, and the Class damages for unpaid overtime wages under R.S.Mo. § 290.527; c. Award Plaintiff Allen, Plaintiff Sanchez, and the Class liquidated damages under R.S.Mo. § 290.527; d. Award Plaintiff Allen, Plaintiff Sanchez, and the Class pre-judgment and post-judgment interest as provided by law; e. Award Plaintiff Allen, Plaintiff Sanchez, and the Class attorneys’ fees and costs as allowed by R.S.Mo. § 290.527; and f. Award Plaintiff Allen, Plaintiff Sanchez, and the Class such other relief as the Court deems fair and equitable.
ANSWER: WHEREFORE, Defendants respectfully request that this Court enter judgment in their favor, that Plaintiffs take nothing thereby, and that this Court award
Defendants any and all further relief that this Court deems appropriate.
COUNT X – MMWL (Misclassification)
Arising Out of Defendants’ Misclassification of Floor Supervisors
(Brought Against Defendants by Plaintiff Mesplay and Plaintiff Kobermann, Individually, and on Behalf of All Others Similarly Situated)
181. Plaintiffs re-allege the allegations as set forth above.
ANSWER: Defendants incorporate their answers and additional responses set forth above.
182. Defendants misclassified Plaintiff Mesplay, Plaintiff Kobermann, and all other similarly situated employees as employees exempt from the overtime provisions of the MMWL.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 182 of Plaintiffs’ First Amended Complaint.
183. Plaintiff Mesplay, Plaintiff Kobermann, and all other similarly situated employees regularly worked, and were not compensated for hours over forty in a workweek.
61 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 61 of 72 ANSWER: Defendants deny each and every allegation and implication in
Paragraph 183 of Plaintiffs’ First Amended Complaint.
184. Defendants violated the MMWL by failing to pay Plaintiff Mesplay, Plaintiff Kobermann, and all other similarly situated employees for all compensable hours worked at the legal and applicable wage rates for all hours worked in a workweek.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 184 of Plaintiffs’ First Amended Complaint.
185. Defendants’ practice was to unlawfully and willfully fail to properly pay their hourly employees for all hours worked.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 185 of Plaintiffs’ First Amended Complaint.
WHEREFORE, on Count X of this Complaint, Plaintiff Mesplay, Plaintiff Kobermann, and all similarly situated employees demand judgment against Defendants and pray this Court:
a. Issue notice to all similarly situated employees of Defendants informing them of their right to file consents to join the FLSA portion of this action; b. Award Plaintiff Mesplay, Plaintiff Kobermann, and all similarly situated employees damages for unpaid wages and/or tips under R.S.Mo. § 290.527; c. Award Plaintiff Mesplay, Plaintiff Kobermann, and all similarly situated employees liquidated damages under R.S.Mo. § 290.527; d. Award Plaintiff Mesplay, Plaintiff Kobermann, and all similarly situated employees pre-judgment and post-judgment interest as provided by law; e. Award Plaintiff Mesplay, Plaintiff Kobermann, and all similarly situated employees attorneys’ fees and costs under R.S.Mo. § 290.527; and f. Award Plaintiff Mesplay, Plaintiff Kobermann, and all similarly situated employees such other relief as the Court deems fair and equitable.
ANSWER: WHEREFORE, Defendants respectfully request that this Court enter judgment in their favor, that Plaintiffs take nothing thereby, and that this Court award
Defendants any and all further relief that this Court deems appropriate.
62 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 62 of 72 COUNT XI
Unjust Enrichment / Quantum Meruit
(Brought Against Defendants by Plaintiffs, Individually, and on Behalf of All Others Similarly Situated)
186. Plaintiffs re-allege the allegations set forth above.
ANSWER: Defendants incorporate their answers and additional responses set forth above.
187. Defendants benefited from the unpaid work performed by Plaintiffs and the Class prior to the start of their shifts, during mandatory training time, and after their shifts. Additionally, Defendants benefited by failing to pay their employees at the legal and applicable wage rates set by state and/or federal law, thereby failing to pay all minimum wages and overtime wages in compliance with the law.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 187 of Plaintiffs’ First Amended Complaint.
188. Defendants were aware or should have been aware that they were receiving the benefit of this unpaid work at the time the work was being performed and accepted and retained that benefit without paying fair compensation for the same.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 188 of Plaintiffs’ First Amended Complaint.
189. Defendants’ acceptance and retention of the benefit of Plaintiffs and the Class’s unpaid labor was inequitable and resulted in Defendants being unjustly enriched.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 189 of Plaintiffs’ First Amended Complaint.
WHEREFORE, on Count XI of this Answer, Plaintiffs and the Class demand judgment against Defendants and pray this Court:
63 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 63 of 72 a. Certify the state law claim set forth in Count XI above as a class action pursuant to Fed. R. Civ. P. 23; b. Order Defendants to disgorge the value of their ill-gained benefits to Plaintiffs and the Class; c. Award Plaintiffs and the Class pre-judgment and post-judgment interest as provided by law; and d. Award Plaintiffs and the Class such other relief as the Court deems fair and equitable.
ANSWER: WHEREFORE, Defendants respectfully request that this Court enter judgment in their favor, that Plaintiffs take nothing thereby, and that this Court award
Defendants any and all further relief that this Court deems appropriate.
COUNT XII
Breach of Contract
(Brought Against Defendants by Plaintiffs, Individually, and on Behalf of All Others Similarly Situated)
190. Plaintiffs re-allege the allegations set forth above.
ANSWER: Defendants incorporate their answers and additional responses set forth above.
191. Defendants entered into a contract with Plaintiffs and all similarly situated employees through which they agreed that: (1) employees would get paid an agreed-upon hourly rate for every hour worked during their employment; and (2) employees would accrue “paid time off” (“PTO”) for every hour worked based on the employees’ length of service with the company.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 191 of Plaintiffs’ First Amended Complaint.
192. Defendants also agreed that PTO “will be paid at the employee’s current regular rate of pay at the time it is taken.”
64 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 64 of 72 ANSWER: Defendants are without sufficient information at this time to identify the source of the quote set forth in Paragraph 192 of Plaintiffs’ First Amended Complaint and, accordingly, deny the allegations set forth in Paragraph 192.
193. Defendants’ breached this contract by: (1) failing to pay Plaintiffs and all others similarly situated their agreed-upon hourly rate for every hour worked during their employment; and (2) failing to pay Plaintiffs and all others similarly situated PTO hours at their current regular rate of pay (as that term is defined under applicable federal and/or state law) at the time PTO was taken.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 193 of Plaintiffs’ First Amended Complaint.
194. Because of Defendants’ breach, Plaintiffs and all others similarly situated have been damaged.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 194 of Plaintiffs’ First Amended Complaint.
195. Because of Defendants’ breach, Plaintiffs and all others similarly situated have been damaged.
ANSWER: Defendants deny each and every allegation and implication in
Paragraph 195 of Plaintiffs’ First Amended Complaint.
WHEREFORE, on Count XII of this Answer, Plaintiffs and the Class demand judgment against Defendants and pray this Court:
a. Certify the state law claim set forth in Count XII above as a class action pursuant to Fed. R. Civ. P. 23; b. Order Defendants to pay Plaintiffs and the Class for the improperly withheld wages in violation of their contract; c. Award Plaintiffs and the Class pre-judgment and post-judgment interest as provided by law; and d. Award Plaintiffs and the Class such other relief as the Court deems fair and equitable.
65 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 65 of 72 ANSWER: WHEREFORE, Defendants respectfully request that this Court enter judgment in their favor, that Plaintiffs take nothing thereby, and that this Court award
Defendants any and all further relief that this Court deems appropriate.
AFFIRMATIVE DEFENSES AND ADDITIONAL RESPONSES
1. Upon information and belief, Plaintiffs’ First Amended Complaint, including each count therein, fails to state a claim against Defendants upon which relief can be granted.
2. Plaintiffs’ claims against Defendant Pinnacle fail because Defendant Pinnacle did not employ Plaintiffs or the members of the purported plaintiff class.
3. Plaintiffs’ claims are barred to the extent that they have failed to comply with applicable statute of limitations periods.
4. Plaintiffs’ claims are barred on the doctrines of res judicata.
5. At all material times, Defendants acted in good faith belief that they were in compliance with applicable statutes, laws and regulations concerning payment of wages and any other compensation owed to Plaintiffs and the purported class. Defendants did not willfully violate the Fair Labor Standards Act (as amended by the Portal-to-Portal Act), the Missouri
Minimum Wage Law, or any other law. Plaintiffs and the purported class, therefore, are not entitled to liquidated damages or penalties.
6. At all material times, Defendants acted in a good faith belief that they were in compliance with all applicable statutes, laws and regulations concerning payment of wages and any other compensation owed to Plaintiffs and the purported class. Defendants did not willfully
66 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 66 of 72 violate the FLSA, the MMWL, or any other law. Plaintiffs and the purported class, therefore, are limited to a two-year statute of limitations at most.
7. At no time did Defendants pay Plaintiffs or the purported class in a manner known or believed to violate any applicable statutory requirement, nor did Defendants compensate Plaintiffs or the purported class in willful disregard of any applicable statutory requirements. Defendants’ actions were in good faith and made in conformity with, and reliance upon, the Administrator of the Wage and Hour Division of the Department of Labor’s administrative regulations, orders, rulings or interpretations, or judicial interpretations of law.
8. Even if Defendants owed Plaintiffs or the purported class any unpaid wages or overtime, such wages or overtime are offset by the paid meal period and/or some of the other paid break time provided to Plaintiffs and other members of the purported class, during which time no work was performed.
9. Plaintiffs and the plaintiff class are precluded from recovery to the extent that they and the plaintiff class have already been compensated for hours worked.
10. Plaintiffs’ claims fail as Defendants properly treated and compensated Plaintiffs and all putative class members they seek to represent under the Missouri Minimum Wage Law and the Fair Labor Standards Act as amended by the Portal-to-Portal Act.
11. Plaintiffs’ claims for damages are duplicative and, to the extent the damages claims are duplicative, such claims should be disregarded.
67 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 67 of 72 12. Plaintiffs’ allegation that the claims asserted in the First Amended Complaint are appropriate for certification as a collective action pursuant to 29 U.S.C. § 216(b) are without basis and should be stricken because there are no “similarly situated individuals.”
13. Defendants are not liable for damages as to individuals who work under a collective bargaining agreement because those individuals are paid wages in accordance with the terms and conditions of the collective bargaining agreement.
14. Plaintiffs do not have standing and are not sufficiently “similar” to any other employees.
15. Plaintiffs’ claims are barred to the extent any alleged unpaid activities were not principal activities under the Portal-to-Portal Act.
16. Plaintiffs’ claims are barred to the extent any activities are preliminary or postliminary activities as determined under the Portal-to-Portal Act.
17. Plaintiffs’ claims for alleged unpaid wages for training fail because such training was voluntary, not related to their current job, and no productive work was performed during such training.
18. Plaintiffs have not alleged any facts demonstrating they were engaged in activities that are compensable and for which they were not paid under the Missouri Minimum Wage Law or the Fair Labor Standards Act as amended by the Portal-to-Portal Act, and, therefore, their claims must fail.
19. Plaintiffs cannot demonstrate that they were engaged in activities that are compensable and for which they were not paid under the Missouri Minimum Wage Law, or the
68 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 68 of 72 Fair Labor Standards Act as amended by the Portal-to-Portal Act, and, therefore, they cannot serve as a class representative to this case.
20. Even if Plaintiffs and any putative class members they seek to represent allege facts constituting compensable activity, those activities are de minimis in nature such that compensation is not required under the Missouri Minimum Wage Law or the Fair Labor
Standards Act as amended by the Portal-to-Portal Act, and therefore, Plaintiffs’ claims must fail.
21. To the extent that Plaintiffs’ claims under Counts V and X include individuals who were paid a salary, Defendants are entitled to a set-off with respect to every such individual for monies paid in salary for any hours when such individual was not working.
22. There being no proper class representative, the entire First Amended Complaint for class action relief must be dismissed.
23. Even if Plaintiffs, or any putative class member, could establish a claim for damages, Plaintiffs and any putative class member failed to mitigate such damages, if any.
24. Some or all of the claims under the First Amended Complaint are barred in whole or in part by the doctrine of waiver.
25. Some or all of the claims under the First Amended Complaint are barred in whole or in part by the doctrine of accord and satisfaction.
26. Some or all of the claims under the First Amended Complaint are barred in whole or in part by the equitable doctrines of laches, estoppel, and/or unclean hands.
27. Plaintiffs’ First Amended Complaint fails to state a cognizable class under
Federal Rule of Civil Procedure 23 or under any applicable rule or law regulating the
69 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 69 of 72 maintenance of collective or class actions, including, but not limited to, Plaintiffs’ failure to establish the requisite numerosity, commonality, typicality of claims and defenses, and representative status and/or standing.
28. Discovery has not yet started. Thus, Defendants reserve the right to add such further or supplemental defenses as may be warranted by the information developed through discovery. Defendants further reserve the right to withdraw any unsupported defense.
29. To the extent that any of the foregoing allegations in the First Amended
Complaint have not been expressly admitted or denied, they are hereby denied.
WHEREFORE, Defendants, Pinnacle Entertainment, Inc., PNK (River City), LLC d/b/a
River City Casino & Hotel, and Ameristar Casino Kansas City, LLC, respectfully request that this Court enter judgment in their favor, that Plaintiffs take nothing thereby, and that this Court award Defendants any and all further relief that this Court deems appropriate.
70 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 70 of 72 Respectfully submitted,
POLSINELLI PC
By: /s/ Denise K. Drake DENISE K. DRAKE (#43351) JAMES C. SULLIVAN (#38318) LATRICE N. LEE (#65024) 900 W. 48th Place, Suite 900 Kansas City, MO 64112 Telephone: (816) 753-1000 Facsimile: (816) 753-1536 [email protected] [email protected] [email protected]
ATTORNEYS FOR DEFENDANTS
71 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 71 of 72 CERTIFICATE OF SERVICE
The undersigned hereby certify that on the 21st day of September, 2017, a true and correct copy of the above and foregoing was electronically filed with the Clerk of the Court by using the Court’s eFiling System, which sends a notice of electronic filing constituting service to the following:
Matthew E. Osman, Esq. Ryan L. McClelland, Esq. Kathryn S. Rickley, Esq. Joni E. Bodnar, Esq. Osman & Smay LLP McClelland Law Firm 8500 W. 110th Street, Suite 330 The Flagship Building Overland Park, KS 66210 200 Westwoods Drive (913) 667-9243 Liberty, MO 64068-1170 Fax: (866) 470-9243 (816) 781-0002 [email protected] Fax: (816) 781-1984 [email protected] [email protected] [email protected] ATTORNEYS FOR PLAINTIFF ATTORNEYS FOR PLAINTIFF
/s/ Denise K. Drake Attorney for Defendants
72 Case 4:17-cv-00374-GAF Document 45 Filed 09/21/17 Page 72 of 72