for the western district of texas austin division tariq … · 2020-04-29 · 4. plaintiff tariq...

PLAINTIFFS’ ORIGINAL COMPLAINT – COLLECTIVE ACTION –

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

TARIQ DEHRAB, KATIA MORA, and § KYLER WELKER, § individually and on behalf of similarly § situated individuals, § § Plaintiffs § § Civil No. __________ -v- § § JOHN CHO and JIC GROUP GLOBAL, LLC § D/B/A CHO SUSHI JAPANESE FUSION § § Defendants. §

PLAINTIFFS’ ORIGINAL COMPLAINT – COLLECTIVE ACTION TO THE HONORABLE UNITED STATES DISTRICT COURT JUDGE:

NOW COMES Plaintiffs Tariq Dehrab, Katia Mora, and Kyler Welker, individually and

on behalf of similarly situated employees (“Servers”), and file Plaintiffs’ Original Complaint –

Collective Action.

I. SUMMARY

This is a simple case of wage theft. Defendants operate sushi restaurants in Steiner

Ranch and Lakeway in the Austin area. Plaintiffs and those similarly situated are Servers at the

Steiner Ranch and Lakeway locations of Cho Sushi Japanese Fusion. Defendants require

plaintiffs to tip out up to 60% of their nightly tips. In some cases, almost 70% of tips are

required to be tipped out. Servers must share their tips with kitchen staff and owners. As such,

Defendants are not entitled to take a tip credit to satisfy minimum wage. Therefore, Defendants

have failed to pay their Servers minimum wage for the past three years.

Case 1:13-cv-01000 Document 1 Filed 11/19/13 Page 1 of 12

Colin Walsh

1:13-cv-01000

Colin Walsh

Colin Walsh


For these reasons, Plaintiffs seek, on behalf of themselves and similarly situated Servers,

unpaid wages, liquidated damages, attorney fees, and all other relief permitted.

II. JURISDICTION AND VENUE

1. This Court has original jurisdiction to hear this complaint and to adjudicate the claims

stated herein under 28 U.S.C. § 1331, this action being brought under the Federal Fair

Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”). Venue is proper because a

substantial part of the events or omissions giving rise to the claim occurred in this

District, and Defendants are subject to personal jurisdiction in Texas.

III. PARTIES

2. Defendant JIC Group Global, LLC (“Cho Sushi”) is a limited Liability Company

doing business in this District. Cho Sushi is an “employer” within the meaning of

FLSA, 29 U.S.C. § 203(d), an “enterprise” within the meaning of FLSA, 29 U.S.C. §

203(r), and “engaged in commerce” within the meaning of FLSA, 29 U.S.C. §

203(s)(1).

3. Defendant John Cho is an owner and operator of Cho Sushi. John Cho is an

“employer” within the meaning of FLSA, 29 U.S.C. § 203(d), an “enterprise” within

the meaning of FLSA, 29 U.S.C. § 203(r), and “engaged in commerce” within the

meaning of FLSA, 29 U.S.C. § 203(s)(1).

4. Plaintiff Tariq Dehrab is a resident of Texas and worked as a server based out of

Travis County, Texas. Mr. Dehrab has been “engaged in commerce” as required by

the FLSA, 29 U.S.C. §§ 206-07. Mr. Dehrab’s consent form is attached as part of

Exhibit 1.



5. Plaintiff Katia Mora is a resident of Texas and worked as a server based out of Travis

County, Texas. Ms. Mora has been “engaged in commerce” as required by the FLSA,

29 U.S.C. §§ 206-07. Ms. Mora’s consent form is attached as part of Exhibit 1.

6. Plaintiff Kyler Welker is a resident of Texas and worked as a server based out of

Travis County, Texas. Kyler Welker has been “engaged in commerce” as required by

the FLSA, 29 U.S.C. §§ 206-07. Kyler Welker’s consent form is attached as part of

Exhibit 1.

7. Plaintiffs brings this action on behalf of themselves and other similarly situated

employees pursuant to 29 U.S.C. § 216(b). Plaintiffs and the similarly situated

employees are individuals who were, or are, employed by Defendants as servers in

the past three years. The putative class has been “engaged in commerce” as required

by the FLSA, 29 U.S.C. §§ 206-07.

IV. COLLECTIVE ACTION ALLEGATIONS

8. During the past three years, Defendants paid Plaintiffs and similarly situated Servers

$2.15 per hour, taking a tip credit of $5.10 at both its Steiner Ranch and Lakeway

locations to satisfy minimum wage obligations.

9. Plaintiff Tariq Dehrab worked as a Server for Defendants from around June 1, 2013

until August 18, 2013.

10. Plaintiff Katia Mora worked as a server for Defendants from March 2013 until

August 18, 2013.

11. Plaintiff Kyler Welker worked as a server for Defendants from June 1, 2013 until

September 21, 2013.

12. Defendants required Plaintiffs and other Servers to participate in a tip pool.



13. Defendants required Plaintiffs and other Servers to contribute at least 20% of their

tips to the tip pool.

14. John Cho, owner of Cho Sushi, participated in the tip pool. At the end of each night,

Mr. Cho took a portion of the tips contributed to the tip pool.

15. Kitchen staff, including dishwashers, also participated in the tip pool with servers.

16. The kitchen staff does not consist of employees who are customarily and regularly

tipped or who are customer facing.

17. On nights that Plaintiffs and other Servers worked at the sushi counter, Defendants

required them to contribute 40% of their tips to the sushi chef.

18. The 40% contribution to the sushi chef was on top of the 20% mandatory contribution

to the tip pool.

19. In other words, on some nights, Defendants relieved Plaintiffs and other Servers of

60% of their tips.

20. On some nights, Defendants took almost 70% of earned tips (annotations added):



21. That means Servers took home only around 30% of their earned tips.

22. John Cho also participated in sushi chef tip pool.

23. Defendants required Plaintiffs and other Servers to pay breakage fees out of their tips.

That is, if glassware, cutlery, or other restaurant property broke, Defendants took the

cost of it (as determined by Defendants) out of Plaintiffs’ tips.

24. These breakage fees are listed on the checks issued to Servers (annotations added):

25. During the last three years, Servers regularly worked in excess of forty hours in

workweeks.

26. According to the paystubs issued to Servers, Defendants only paid $3.22 for overtime

work (annotations added):

27. Correct overtime rate is $5.76 per hour.

28. Defendants failed to pay servers one-and-one-half times their regular rate of pay for

each hour worked over forty in a workweek.

29. These practices invalidate the tip pool that Servers participate in.

30. These practices invalidate the $5.10 tip credit that Defendants take on each server.



31. Servers are paid less than minimum wage.

32. These practices violate the provisions of the Federal Fair Labor Standards Act, 29

U.S.C. § 201 et seq. As a result of these unlawful practices, Plaintiffs and the

similarly situated employees suffered a loss of wages.

33. Defendants are fully aware of all employment-related laws and regulations, including

the FLSA. Therefore, Defendants had knowledge or reckless disregard for the fact

that their failure to pay their servers appropriate minimum wage and overtime

compensation was in violation of the law.

34. All conditions precedent to the filing of this suit have been satisfied.

V. COLLECTIVE FAIR LABOR STANDARDS ACT VIOLATIONS

35. Plaintiffs incorporate paragraphs 1-34 as if restated herein.

36. Plaintiffs and other Servers were “suffered or permitted to work” by Defendants

during the relevant time period.

37. Plaintiffs and other Servers were employees of Defendants.

38. Defendants are engaged in commerce.

39. Plaintiffs and other Servers were considered by Defendants to be “tipped employees.”

40. Defendants paid cash wages of $2.15 per hour, taking a tip credit of $5.10 per hour,

per Server.

41. Defendants’ actions invalidate the tip credit of $5.10.

42. By failing to pay minimum wage, Defendants violated the Federal Fair Labor

Standards Act.

43. Because of the actions of Defendants, Plaintiff and Servers suffered damages within

the jurisdictional limits of this Court.



44. Plaintiff brings this case as a collective action pursuant to §216(b) of the FLSA.

Plaintiff alleges that the FLSA violations were applicable companywide.

45. Plaintiff is representative of those similarly situated individuals who are current or

former employees of Cho Sushi, who are or were employed as Servers.

VI. PRAYER FOR RELIEF

WHEREFORE, Plaintiffs and all employees similarly situated who join in this action

demand:

1. Issuance of notice as soon as possible to all servers who were employed by

Defendants during any portion of the three years immediately preceding the filing

of this action. Generally, this notice should inform them that this action has been

filed, describe the nature of the action, and explain their right to opt into this

lawsuit if they were not paid correctly for hours worked as servers during any

portion of the statutory period;

2. Judgment against Defendants for an amount equal to Plaintiffs and the class’

unpaid back wages at the applicable overtime rate for each hour worked over

forty;

3. Judgment against Defendants for an amount equal to Plaintiffs and the class’

unpaid back wages at the applicable regular rate for each hour worked under forty

and the tips that were taken;

4. Judgment against Defendants that their violations of the FLSA were willful;

5. An equal amount to the wage damages as liquidated damages;

6. To the extent that liquidated damages are not awarded, an award of prejudgment

interest;



7. All costs incurred and reasonable attorneys’ fees for prosecuting these claims;

8. Leave to add additional Plaintiffs by motion, the filing of written consent forms,

or any other method approved by the Court;

9. Leave to amend to add claims, including claims under applicable state laws and

incentive awards; and

10. For such further relief as the Court deems just and equitable.

WHEREFORE, premises considered, Plaintiffs respectfully pray that Defendants be

summoned to appear and that, upon a trial on the merits, all relief requested be awarded to

Plaintiff and similarly situated employees, and for such other and further relief to which Plaintiff

is justly entitled.

Respectfully submitted,

_______/s/ Colin Walsh___________ Robert J. Wiley Texas Bar No. 24013750 Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization Colin Walsh Texas Bar No. 24079538 ROB WILEY, P.C. 1011 San Jacinto Blvd., Ste 401 Telephone: (512) 271-5527 Facsimile: (512) 287-3084 [email protected] ATTORNEYS FOR PLAINTIFF


Case 1:13-cv-01000 Document 1 Filed 11/19/13 of 12

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