Capt. George's Class Action Complaint

4:17-cv-01308-RBH Date Filed 05/19/17 Entry Number 1 Page 1 of 36
In the United States District Court

for the District of South Carolina
Florence Division
Chris Gagliastre, Zachary Tarry, and Olga

Zayneeva, Civil Action No.
On behalf of themselves and those

similarly situated,
Plaintiffs,
v.
Capt. Georges Seafood Restaurants, LP; Jury Trial Requested

Captain Georges of South Carolina, LP;
Captain Georges of South Carolina, Inc.; The
Captain at the Beach, LLC; Captain KDH,
LLC; Pit Co 1, LLC; PitNorth, LLC;
Lideslambous, Inc.; Pitsilambous, Inc.; George
Pitsilides; Sherry Pitsilides; Nicole Perkins;
and Kristina Chastain; Doe Corporations 1-4;
Defendants.
Class and Collective Action Complaint
1. Chris Gagliastre, Zachary Tarry, and Olga Zayneeva, on behalf of themselves and
all similarly-situated individuals, bring this action against Defendants Capt. Georges Seafood
Restaurants, LP; Captain Georges of South Carolina, LP; Captain Georges of South Carolina,
Inc.; The Captain at the Beach, LLC; Captain KDH, LLC; Pit Co 1, LLC; PitNorth, LLC;
Lideslambous, Inc.; Pitsilambous, Inc.; George Pitsilides; Sherry Pitsilides; Nicole Perkins;
Kristina Chastain; and Doe Corporations 1-4 (collectively Defendants or Captain
Georges). Plaintiffs seek appropriate monetary, declaratory, and equitable relief based on
Defendants willful failure to compensate Plaintiffs and similarly-situated individuals with
minimum wages as required by the Fair Labor Standards Act (FLSA) and for impermissible
deductions in violation of the South Carolina Payment of Wages Act (SCPWA), S.C. Code
Ann. 41-10-10, et seq.
2. Defendants own and operate four seafood buffet restaurants in Myrtle Beach,
South Carolina, Kill Devil Hills, North Carolina, Virginia Beach, Virginia, and Williamsburg,
Virginia as a single integrated enterprise.
3. Captain Georges was founded by George and Sherry Pitsilides in 1979.
4. Captain Georges is a popular and well-known seafood restaurant for both locals
and tourists to Myrtle Beach, Virginia Beach, the Outer Banks, and Williamsburg.
5. Captain Georges employs at least 400 employees year round, and up to 800
employees during the tourist seasons.
6. Plaintiffs worked for Captain Georges as servers at their Myrtle Beach location.
7. Defendants have repeatedly violated the FLSA by improperly applying a tip credit
to servers wages.
8. Defendants require servers to give a percentage of their tips each night to the
house, i.e., to the restaurant itself.
9. As a result, Defendants are regularly paid more by their servers in
misappropriated tips than Defendants pay to servers in wages.
10. Defendants require servers to share tips with other non-tipped employees who are
not properly included in the servers tip pool.
11. Defendants require servers to work off the clock.
2
12. When Defendants servers work over 40 hours per week, they are either required
to work off the clock for this time, or they are paid at the incorrect overtime rate.
13. Defendants require servers to spend more than 20% of their time at work
completing non-tipped sidework.
14. Defendants maintain a policy and practice of underpaying their servers in violation
of the FLSA.
15. All servers at the Captain Georges restaurants, including Plaintiffs, are subject to
the same or similar employment policies and practices, including policies and practices with
respect to wages paid, and with respect to tip pooling.
16. Plaintiffs bring this action on behalf of themselves and similarly situated current
and former servers who elect to opt in pursuant to FLSA, 29 U.S.C. 216(b), to remedy
violations of the FLSA wage and hour provisions by Defendants.
17. Plaintiffs also bring this action on behalf of themselves and similarly situated
current and former servers in South Carolina, pursuant to Federal Rule of Civil Procedure 23, to
remedy violations of the SCPWA, S.C. Code Ann. 40-10-30(A).
I. Jurisdiction and Venue
18. Under 28 U.S.C. 1331 and 29 U.S.C. 216(b), this Court has jurisdiction over
Plaintiffs FLSA claims.
19. Under 28 U.S.C. 1367, this Court has supplemental jurisdiction over Plaintiffs
South Carolina law claims.
20. Venue in this Court is proper under 28 U.S.C. 1391(b).
II. Parties
3
Plaintiffs
Chris Gagliastre
21. Plaintiff Chris Gagliastre is an individual residing in Horry County, South
Carolina.
22. Gagliastre has given written consent to join this action. The consent form is filed
with this Complaint.
23. At all relevant times, Gagliastre was an employee of Defendants within the
meaning of the FLSA.
Zachary Tarry
24. Plaintiff Zachary Tarry is an individual residing in Horry County, South Carolina.
25. Tarry has given written consent to join this action. The consent form is filed with
this Complaint.
26. At all relevant times, Tarry was an employee of Defendants within the meaning
of the FLSA.
Olga Zayneeva
27. Plaintiff Olga Zayneeva is an individual residing in Horry County, South Carolina.
28. Zayneeva has given written consent to join this action. The consent form is filed
with this Complaint.
29. At all relevant times, Zayneeva was an employee of Defendants within the
meaning of the FLSA.
Defendants
4
30. Defendants have jointly employed Plaintiffs and similarly situated servers at all
times relevant.
31. Each of the Defendants had control over Plaintiffs and similarly situated servers
working conditions.
32. Defendants are part of a single integrated enterprise.
33. At all relevant times, the Captain Georges restaurants shared common
management and were centrally controlled and/or owned by George Pitsilides, Sherry Pitsilides,
Nicole Perkins, and Kristina Chastain.
34. At all relevant times, Defendants maintained control over labor relations at the
Captain Georges restaurants.
35. During all relevant times, Defendants permitted employees to transfer or be
shared by and between the Captain Georges restaurants without retraining.
36. Defendants centrally control and co-operate the Captain Georges restaurants
from their headquarters at 1956 Laskin Road, Virginia Beach, Virginia 23454.
37. Defendants suffer or permit Plaintiff and other servers to work.
38. Defendants have direct or indirect control of the terms and conditions of
Plaintiffs work and the work of similarly situated servers.
Capt. Georges Seafood Restaurants, LP
39. Upon information and belief, Defendant Capt. Georges Seafood Restaurants, LP
is a foreign limited partnership, with its headquarters in Virginia.
40. Capt. Georges Seafood Restaurants, LPs owner and President is George
Pitsilides.
5
41. Upon information and belief, Capt. Georges Seafood Restaurants, LP is
headquartered at 1956 Laskin Road, Virginia Beach, Virginia 23454.
42. Capt. Georges Seafood Restaurants, LP is the entity that appears on Plaintiffs
paystubs for work they completed for Defendants.
43. Capt. Georges Seafood Restaurants, LP is an employer of Plaintiffs and
similarly situated servers as that term is defined by the FLSA.
44. Capt. Georges Seafood Restaurants, LP applies or causes to be applied
substantially the same employment policies, practices, and procedures to all servers at all of its
locations, including policies, practices, and procedures relating to payment of minimum wages,
overtime wages, tip pooling, side work, and clock in/out procedures.
45. Capt. Georges Seafood Restaurants, LP maintained control, oversight, and
direction over Plaintiffs and similarly situated employees, including, but not limited to, hiring,
firing, disciplining, timekeeping, payroll, expense reimbursements, and other practices.
46. Capt. Georges Seafood Restaurants, LP has been and continues to be an
enterprise engaged in the production of goods for commerce within the meaning of the phrase
as used in the FLSA.
47. Capt. Georges Seafood Restaurants, LPs gross revenue exceeds $500,000 per
year.
Captain Georges of South Carolina, LP
48. Defendant Captain Georges of South Carolina, LP is a foreign limited
partnership, with its headquarters in Virginia.
6
49. Captain Georges of South Carolina, LPs owner and President is George
Pitsilides.
50. Captain Georges of South Carolina, LP is headquartered at 1956 Laskin Road,
Virginia Beach, Virginia 23454.
51. Captain Georges of South Carolina, LP is an employer of Plaintiffs and
52. Captain Georges of South Carolina, LP applies or causes to be applied
53. Captain Georges of South Carolina, LP maintained control, oversight, and
54. Captain Georges of South Carolina, LP has been and continues to be an
55. Captain Georges of South Carolina, LPs gross revenue exceeds $500,000 per
year.
Captain Georges of South Carolina, Inc.
56. Defendant Captain Georges of South Carolina, Inc. is a foreign corporation with
its headquarters in Virginia.
7
57. Captain Georges of South Carolina, Inc.s owner and President is George
Pitsilides.
58. Captain Georges of South Carolina, Inc. is headquartered at 1956 Laskin Road,
Virginia Beach, Virginia 23454.
59. Captain Georges of South Carolina, Inc. is an employer of Plaintiffs and
60. Captain Georges of South Carolina, Inc. applies or causes to be applied
61. Captain Georges of South Carolina, Inc. maintained control, oversight, and
62. Captain Georges of South Carolina, Inc. has been and continues to be an
63. Captain Georges of South Carolina, Inc.s gross revenue exceeds $500,000 per
year.
The Captain at the Beach, LLC
64. Defendant The Captain at the Beach, LLC is a foreign limited liability company
with its headquarters in Virginia.
65. The Captain at the Beach, LLCs owner and President is George Pitsilides.
8
66. The Captain at the Beach, LLC is headquartered at 1956 Laskin Road, Virginia
Beach, Virginia 23454.
67. The Captain at the Beach, LLC is an employer of Plaintiffs and similarly
situated servers as that term is defined by the FLSA.
68. The Captain at the Beach, LLC applies or causes to be applied substantially the
same employment policies, practices, and procedures to all servers at all of its locations,
including policies, practices, and procedures relating to payment of minimum wages, overtime
wages, tip pooling, side work, and clock in/out procedures.
69. The Captain at the Beach, LLC maintained control, oversight, and direction over
Plaintiffs and similarly situated employees, including, but not limited to, hiring, firing,
disciplining, timekeeping, payroll, expense reimbursements, and other practices.
70. The Captain at the Beach, LLC has been and continues to be an enterprise
engaged in the production of goods for commerce within the meaning of the phrase as used in
the FLSA.
71. The Captain at the Beach, LLCs gross revenue exceeds $500,000 per year.
Captain KDH, LLC
72. Defendant Captain KDH, LLC is a foreign limited liability company with its
headquarters in Virginia.
73. Captain KDH, LLCs owner and President is George Pitsilides.
74. Captain KDH, LLC is headquartered at 1956 Laskin Road, Virginia Beach,
Virginia 23454.
9
75. Captain KDH, LLC is an employer of Plaintiffs and similarly situated servers
as that term is defined by the FLSA.
76. Captain KDH, LLC applies or causes to be applied substantially the same
employment policies, practices, and procedures to all servers at all of its locations, including
policies, practices, and procedures relating to payment of minimum wages, overtime wages, tip
pooling, side work, and clock in/out procedures.
77. Captain KDH, LLC maintained control, oversight, and direction over Plaintiffs
and similarly situated employees, including, but not limited to, hiring, firing, disciplining,
timekeeping, payroll, expense reimbursements, and other practices.
78. Captain KDH, LLC has been and continues to be an enterprise engaged in the
production of goods for commerce within the meaning of the phrase as used in the FLSA.
79. Captain KDH, LLCs gross revenue exceeds $500,000 per year.
PitCo 1, LLC
80. Defendant PitCo 1, LLC is a foreign limited liability company with its
81. PitCo 1, LLCs owner and President is George Pitsilides.
82. PitCo 1, LLC is headquartered at 1956 Laskin Road, Virginia Beach, Virginia
23454.
83. PitCo 1, LLC is an employer of Plaintiffs and similarly situated servers as that
term is defined by the FLSA.
84. PitCo 1, LLC applies or causes to be applied substantially the same employment
policies, practices, and procedures to all servers at all of its locations, including policies,
10
practices, and procedures relating to payment of minimum wages, overtime wages, tip pooling,
side work, and clock in/out procedures.
85. PitCo 1, LLC maintained control, oversight, and direction over Plaintiffs and
similarly situated employees, including, but not limited to, hiring, firing, disciplining,
86. PitCo 1, LLC has been and continues to be an enterprise engaged in the
87. PitCo 1, LLCs gross revenue exceeds $500,000 per year.
PitNorth, LLC
88. Defendant PitNorth, LLC is a foreign limited liability company with its
89. PitNorth, LLCs owner and President is George Pitsilides.
90. PitNorth, LLC is headquartered at 1956 Laskin Road, Virginia Beach, Virginia
23454.
91. PitNorth, LLC is an employer of Plaintiffs and similarly situated servers as that
term is defined by the FLSA.
92. PitNorth, LLC applies or causes to be applied substantially the same employment
policies, practices, and procedures to all servers at all of its locations, including policies,
practices, and procedures relating to payment of minimum wages, overtime wages, tip pooling,
side work, and clock in/out procedures.
11
93. PitNorth, LLC maintained control, oversight, and direction over Plaintiffs and
94. PitNorth, LLC has been and continues to be an enterprise engaged in the
95. PitNorth, LLCs gross revenue exceeds $500,000 per year.
Pitsilambous, Inc.
96. Defendant Pitsilambous, Inc. is a foreign limited liability company with its
97. Pitsilambous, Inc.s owner and President is George Pitsilides.
98. Pitsilambous, Inc. is headquartered at 1956 Laskin Road, Virginia Beach, Virginia
23454.
99. Pitsilambous, Inc. is an employer of Plaintiffs and similarly situated servers as
that term is defined by the FLSA.
100. Pitsilambous, Inc. applies or causes to be applied substantially the same
101. Pitsilambous, Inc. maintained control, oversight, and direction over Plaintiffs and
12
102. Pitsilambous, Inc. has been and continues to be an enterprise engaged in the
103. Pitsilambous, Inc.s gross revenue exceeds $500,000 per year.
Lideslambous, Inc.
104. Defendant Lideslambous, Inc. is a foreign limited liability company with its
105. Lideslambous, Inc.s owner and President is George Pitsilides.
106. Lideslambous, Inc. is headquartered at 1956 Laskin Road, Virginia Beach, Virginia
23454.
107. Lideslambous, Inc. is an employer of Plaintiffs and similarly situated servers as
that term is defined by the FLSA.
108. Lideslambous, Inc. applies or causes to be applied substantially the same
109. Lideslambous, Inc. maintained control, oversight, and direction over Plaintiffs and
110. Lideslambous, Inc. has been and continues to be an enterprise engaged in the
111. Lideslambous, Inc.s gross revenue exceeds $500,000 per year.
George Pitsilides
13
112. Defendant George Pitsilides is the founder, owner, and operator of all of the
Defendant entities.
113. George Pitsilides is the owner and president of Capt. Georges Seafood
Restaurants, LP.
114. George Pitsilides is the owner and president of Captain Georges of South
Carolina, LP.
115. George Pitsilides is the owner and president of Captain Georges of South
Carolina, Inc.
116. George Pitsilides is the owner and president of The Captain at the Beach, LLC.
117. George Pitsilides is the owner and president of Captain KDH, LLC.
118. George Pitsilides is the owner and president of PitCo 1, LLC.
119. George Pitsilides is the owner and president of PitNorth, LLC.
120. George Pitsilides is the owner and president of Pitsilambous, Inc.
121. George Pitsilides is the owner and president of Lideslambous, Inc.
122. George Pitsilides lives in Virginia Beach, Virginia.
123. George Pitsilides is a hands-on owner who oversees operations in all four of his
restaurants.
124. In an article for U.S. Business Executive magazine, George Pitsilides stated that
he is a hands-on owner who oversees operations in all four of his restaurants.
125. Upon information and belief, George Pitsilides operates and controls the
Defendant corporations from their headquarters at 1956 Laskin Road, Virginia Beach, Virginia
23454.
14
126. At all relevant times, George Pitsilides has been an employer of Plaintiffs and
similarly situated delivery drivers as that term is defined by the FLSA.
127. At all relevant times, George Pitsilides has been actively involved in managing the
operations of the Captain Georges restaurants.
128. At all relevant times, George Pitsilides has had control over Defendants pay
policies.
129. At all relevant times, George Pitsilides has had power over personnel and payroll
decisions at the Captain Georges restaurants.
130. At all relevant times, George Pitsilides has had the power to stop any illegal pay
practices that harmed Plaintiffs and similarly situated employees.
131. At all times relevant, George Pitsilides has had the power to transfer the assets
and liabilities of each of the named corporate defendants.
132. At all relevant times, George Pitsilides has had the power to declare bankruptcy on
behalf of each of the named corporate defendants.
133. At all relevant times, George Pitsilides has had the power to enter into contracts
on behalf of each of the named corporate defendants.
134. At all relevant times, George Pitsilides has had the power to close, shut down,
and/or sell each of the named corporate defendants.
Sherry Pitsilides
135. Defendant Sherry Pitsilides is a founder, owner, and operator of all of the
Defendant entities.
136. Upon information and belief, Sherry Pitsilides lives in Virginia Beach, Virginia.
15
137. Upon information and belief, Sherry Pitsilides operates and controls the
23454.
138. At all relevant times, Sherry Pitsilides has been an employer of Plaintiffs and
139. At all relevant times, Sherry Pitsilides has been actively involved in managing the
140. At all relevant times, Sherry Pitsilides has had control over Defendants pay
policies.
141. At all relevant times, Sherry Pitsilides has had power over personnel and payroll
142. At all relevant times, Sherry Pitsilides has had the power to stop any illegal pay
143. At all times relevant, Sherry Pitsilides has had the power to transfer the assets and
liabilities of each of the named corporate defendants.
144. At all relevant times, Sherry Pitsilides has had the power to declare bankruptcy on
145. At all relevant times, Sherry Pitsilides has had the power to enter into contracts on
146. At all relevant times, Sherry Pitsilides has had the power to close, shut down,
Nicole Perkins
16
147. Defendant Nicole Perkins is an owner and operator of all of the Defendant
entities.
148. Upon information and belief, Nicole Perkins lives in Virginia Beach, Virginia.
149. Upon information and belief, Nicole Perkins operates and controls the Defendant
corporations from their headquarters at 1956 Laskin Road, Virginia Beach, Virginia 23454.
150. At all relevant times, Nicole Perkins has been an employer of Plaintiffs and
151. At all relevant times, Nicole Perkins has been actively involved in managing the
152. At all relevant times, Nicole Perkins has had control over Defendants pay
policies.
153. At all relevant times, Nicole Perkins has had power over personnel and payroll
154. At all relevant times, Nicole Perkins has had the power to stop any illegal pay
155. At all times relevant, Nicole Perkins has had the power to transfer the assets and
liabilities of each of the named corporate defendants.
156. At all relevant times, Nicole Perkins has had the power to declare bankruptcy on
157. At all relevant times, Nicole Perkins has had the power to enter into contracts on
17
158. At all relevant times, Nicole Perkins has had the power to close, shut down,
Kristina Chastain
159. Defendant Kristina Chastain is an owner and operator of all of the Defendant
entities.
160. Upon information and belief, Kristina Chastain lives in Virginia Beach, Virginia.
161. Upon information and belief, Kristina Chastain operates and controls the
23454.
162. At all relevant times, Kristina Chastain has been an employer of Plaintiffs and
163. At all relevant times, Kristina Chastain has been actively involved in managing the
164. At all relevant times, Kristina Chastain has had control over Defendants pay
policies.
165. At all relevant times, Kristina Chastain has had power over personnel and payroll
166. At all relevant times, Kristina Chastain has had the power to stop any illegal pay
167. At all times relevant, Kristina Chastain has had the power to transfer the assets
and liabilities of each of the named corporate defendants.
18
168. At all relevant times, Kristina Chastain has had the power to declare bankruptcy
169. At all relevant times, Kristina Chastain has had the power to enter into contracts
170. At all relevant times, Kristina Chastain has had the power to close, shut down,
Doe Corporations 1-4
171. Upon information and belief, Defendants own and operate other corporate entities
and/or limited liability companies that also qualify as Plaintiffs employers under the FLSA.
172. These defendants may include, but are not limited to, Pitsilides, Inc.; Pitsilides
Management of SC, Inc.; Pitsilides Management, LLC; and Pitsilides Family, LLC; PitCo
Family, LLC; and PitCo 2, LLC.
III. Facts
CLASSWIDE FACTUAL ALLEGATIONS
173. During all relevant times, Defendants have operated the Captain Georges
Seafood Restaurants in Myrtle Beach, South Carolina, Kill Devil Hills, North Carolina, Virginia
Beach, Virginia, and Williamsburg, Virginia.
174. Plaintiffs and the similarly situated persons they seek to represent are current and
former servers employed by Defendants.
175. All servers employed by Defendants over the last three years had essentially the
same job duties to serve food and drinks to customers at Captain Georges restaurants.
176. At all relevant times, Defendants paid servers below minimum wage.
19
177. Defendants purported to pay servers tip credit minimum wage, which is $2.13 per
hour.
178. However, Defendants have paid servers $2.125 per hour.
179. Even if Defendants had paid tipped minimum wage, Defendants failed to satisfy
all of the requirements in taking a tip credit from servers wages. Specifically, Defendants failed
to notify servers that they would be taking a tip credit from their wages, failed to compensate
servers for all hours worked, misappropriated servers tips and forced servers to share tips with
managerial and/or other employees who are not eligible to share in the tip pool, required servers
to spend more than 20% of their time at work in a non-tipped capacity, and failed to pay proper
overtime to employees who worked greater than 40 hours in a week.
180. Defendants failed to provide proper notice to servers that they would be taking a
tip credit from their wages.
181. Defendants required servers to pay a certain percentage of their total sales directly
to the restaurant out of the tips they received.
182. Servers regularly had to pay either 2% or 3% of their total sales for a shift to the
restaurant out of their tips. For example, if they generated $1,000 in sales, and were tipped $200
from the customers, they would be required to pay either $20 (2%) or $30 (3%) to the restaurant
out of their tips.
183. As a result of Defendants house tip-out policy, Defendants regularly receive more
money from their servers in misappropriated tips than they pay to their servers in wages.
184. Servers were also required to share tips with managerial employees who were not
customarily engaged in customer service.
20
185. Servers were also required to share tips with kitchen employees and other back of
the house employees who were not customarily engaged in customer service.
186. Defendants required servers to complete cleaning duties at the beginning and/or
end of each shift which often encompassed more than 20% of their time at work.
187. Defendants required servers and other employees to complete overtime work off
the clock.
188. When servers overtime hours were recorded and paid by Defendants, they were
paid at the incorrect overtime rate.
PLAINTIFFS INDIVIDUAL FACTUAL ALLEGATIONS
189. Consistent with their policies, patterns, and practices as described herein,
Defendants harmed Plaintiffs, individually, as follows:
Chris Gagliastre
190. Chris Gagliastre worked as a server at Captain Georges restaurant in Myrtle
Beach, South Carolina from March 2015 to August 2015.
191. Gagliastre typically worked 35-40 hours per week for Defendants.
192. As a server, Gagliastres primary job duties included waiting on guests.
193. Gagliastre also regularly completed 1-2 hours of side work at the beginning and/or
end of each shift.
194. Gagliastre was paid $2.125 per hour for all hours worked.
195. At the end of each shift, Gagliastre had to give 3% of the sales he obtained directly
to the restaurant out of his tips.
21
196. Gagliastre worked some overtime hours, but Defendants rounded his work hours
down so that he would not be paid overtime pay.
Zachary Tarry
197. Zachary Tarry worked as a server at Captain Georges restaurant in Myrtle Beach,
South Carolina from August 2014 to the summer of 2015.
198. Tarry worked for Defendants as a bartender in the summer of 2015, and became
an assistant manager in late summer 2015.
199. Tarry regularly worked over 40 hours per week for Defendants.
200. As a server, Tarrys primary job duties included waiting on guests.
201. Tarry regularly completed 1-2 hours of side work at the beginning and/or end of
each shift.
202. Tarry was paid $2.125 per hour for all hours worked as a server.
203. At the end of each shift, Tarry had to give either 2% or 3% of the sales he obtained
directly to the restaurant out of his tips.
204. As a manager, he collected this house tip-out money from the servers, placed it in
an envelope, and placed it in the restaurants safe.
205. When Tarry worked overtime hours as a server, he was required to clock out and
work overtime off the clock. He was not paid for this time.
206. On the occasions where Tarry did work overtime hours that were properly
recorded, he was paid overtime at $3.188 per hour, which is the wrong overtime rate.
207. After Tarry became a bartender / assistant manager in 2015, he was informed that
he would be paid a flat rate per day, plus a percentage of the servers tip-out.
22
208. When he first became a bartender / assistant manager, for the first month
approximately, he was paid $50 per day, plus .0015% or .002% of the servers tip-out.
209. Eventually, Tarry was $100 per day, plus .0015% or .002% of the servers tip-out.
210. As a bartender / assistant manager, Tarry was not required to clock in and out.
211. As a bartender / assistant manager, Tarry regularly worked over 40 hours per
week.
212. During the offseason, as a bartender / assistant manager, Tarry worked
approximately 45 to 55 hours per week consistently. His normal schedule was 5 days per week,
from 3:00pm to 12:30 or 1:00am.
213. During the peak season, as a bartender / assistant manager, Tarry worked
approximately 55 to 65 hours per week consistently. His normal schedule was 5 days per week,
from 1:00pm to 12:30 or 1:00am.
214. However, when Tarry worked his normal schedule as a bartender / assistant
manager, Defendants only recorded 40 hours on his time records, and paid him $100 per shift, or
$500 for the week.
215. On the other hand, when Tarry worked fewer than 5 days in a given week, he was
not paid $500 for the week, but instead an amount the corresponded with the number of days he
worked.
216. As a bartender / assistant manager, Tarry was primarily responsible for ensuring
that the restaurant operated smoothly. He was supposed to help any servers that had issues, help
ensure the computer system was operating properly, complete table checks (i.e., registering
each table on a handheld iPad to ensure servers werent charging people off the books), and
23
disciplined servers. For example, servers that broke company rules would be assigned to extra
side work.
Olga Zayneeva
217. Olga Zayneeva has worked as a server at Captain Georges restaurant in Myrtle
Beach, South Carolina from June 2015 to present.
218. Zayneeva typically works 20-40 hours per week for Defendants.
219. As a server, Zayneevas primary job duties include waiting on guests.
220. Zayneeva also regularly completes 1-2 hours of side work at the beginning and/or
end of each shift.
221. Zayneeva is paid $2.125 per hour for all hours worked.
222. At the end of each shift, Zayneeva has to give either 2% or 3% of the sales she
obtained directly to the restaurant out of her tips.
223. Zayneeva worked some overtime hours, but Defendants rounded her work hours
down so that she would not be paid overtime pay.
IV. Collective Action Allegations
224. Plaintiffs bring the First and Second Counts on behalf of themselves and all
similarly situated current and former servers employed at the Captain Georges restaurants
owned, operated, and controlled by Defendants nationwide, during the three years prior to the
filing of this Class Action Complaint and the date of final judgment in this matter, who elect to
opt-in to this action (the FLSA Collective).
225. At all relevant times, Plaintiffs and the FLSA Collective have been similarly
situated, have had substantially similar job duties, requirements, and pay provisions, and have all
24
been subject to Defendants decision, policy, plan, practices, procedures, protocols, and rules of
willfully refusing to pay Plaintiffs and the FLSA Collective minimum wage for all hours worked,
misappropriating their tips, requiring them to work off the clock, and refusing to pay them
overtime compensation. Plaintiffs claims are essentially the same as those of the FLSA
Collective.
226. Defendants unlawful conduct is pursuant to a corporate policy or practice of
minimizing labor costs by failing to properly pay Plaintiffs and the FLSA Collective.
227. Defendants are aware or should have been aware that federal law requires them to
pay all tipped employees at least $2.13 per hour.
228. Defendants are aware or should have been aware that federal law prohibits them
from paying employees tip credit minimum wage unless they adhere to certain rules, including
rules against misappropriating employee tips.
229. Defendants are aware or should have been aware that federal law require them to
pay employees at least full minimum wage for all hours worked in a non-tipped capacity.
230. Defendants are aware or should have been aware that federal law requires them to
pay time and one half overtime wages to employees who work over 40 hours in a workweek.
231. Defendants unlawful conduct has been widespread, repeated, and consistent.
232. The First and Second Counts are properly brought under and maintained as an
opt-in collective action under 29 U.S.C. 216(b).
233. The FLSA Collective members are readily identifiable and ascertainable.
25
234. For the purpose of notice and other purposes related to this action, the FLSA
Collective members names and contact information are readily available from Defendants
records.
235. In recognition of the services Plaintiffs have rendered and will continue to render
to the FLSA Collective, Plaintiffs will request payment of a service award upon resolution of this
action.
V. Class Action Allegations
236. Plaintiffs brings the Third Count under Federal Rule of Civil Procedure 23, on
behalf of themselves and a class of persons consisting of:
All persons who work or worked as servers and similar employees for Capt.
Georges Seafood Restaurants, LP; Captain Georges of South Carolina, LP;
Captain Georges of South Carolina, Inc.; The Captain at the Beach, LLC;
Captain KDH, LLC; Pit Co 1, LLC; PitNorth, LLC; Lideslambous, Inc.;
Pitsilambous, Inc.; George Pitsilides; Sherry Pitsilides; Nicole Perkins; and
Kristina Chastain; and Doe Corporations 1-4 in South Carolina between May 19,
2014 and the date of final judgment in this matter (Rule 23 Class).
237. Excluded from the Rule 23 Class are Defendants legal representatives, officers,
directors, assigns, and successors, or any individual who has, or who at any time during the class
period has had, a controlling interest in Defendants; the Judge(s) to whom this case is assigned
and any member of the Judges immediate family; and all persons who will submit timely and
otherwise proper requests for exclusion from the Rule 23 Class.
238. The number and identity of the Rule 23 Class members are ascertainable from
Defendants records. The hours assigned and worked, the positions held, and the rates of pay
and reimbursement for each Rule 23 Class Member are also determinable from Defendants
records. For the purpose of notice and other purposes related to this action, their names and
26
addresses are readily available from Defendants. Notice can be provided by means permissible
under Federal Rule of Civil Procedure 23.
239. The Rule 23 Class member are so numerous that joinder of all members is
impracticable, and the disposition of their claims as a class will benefit the parties and the Court.
240. There are more than 50 Rule 23 Class members.
241. Plaintiffs claims are typical of those claims which could be alleged by any Rule 23
Class member, and the relief sought is typical of the relief which would be sought by each Rule 23
Class member in separate actions.
242. Plaintiffs and the Rule 23 Class members were subject to the same corporate
practices of Defendants, as alleged herein, of having their tips unlawfully deducted by
Defendants.
243. Plaintiffs and the Rule 23 Class members have all sustained similar types of
damages as a result of Defendants failure to comply with S.C. Code Ann. 41-10-10, et seq.
244. Plaintiffs and the Rule 23 Class members have all been injured in that they have
been uncompensated or under-compensated due to Defendants common policies, practices, and
patterns of conduct. Defendants corporate-wide policies and practices affected all Rule 23 Class
members similarly, and Defendants benefited from the same type of unfair and/or wrongful acts
as to each of the Rule 23 Class members.
245. Plaintiffs and the Rule 23 Class members sustained similar losses, injuries, and
damages arising from the same unlawful practices, polices, and procedures.
246. By seeking to represent the interests of the Rule 23 Class members, Plaintiffs are
exercising and intend to exercise their right to engage in concerted activity for the mutual aid or
27
benefit of themselves and their co-workers.
247. Plaintiffs are able to fairly and adequately protect the interests of the Rule 23 Class
and have no interests antagonistic to the Rule 23 Class.
248. Plaintiffs are represented by attorneys who are experienced and competent in both
class action litigation and employment litigation.
249. A class action is superior to other available methods for the fair and efficient
adjudication of the controversy, particularly in the context of wage and hour litigation on behalf
of minimum wage employees where individual class members lack the financial resources to
vigorously prosecute a lawsuit against corporate defendants. Class action treatment will permit a
large number of similarly situated persons to prosecute their common claims in a single forum
simultaneously, efficiently, and without the unnecessary duplication of efforts and expense that
numerous individual actions engender. Because the losses, injuries, and damages suffered by
each of the individual Rule 23 Class members are small in the sense pertinent to class action
analysis, the expenses and burden of individual litigation would make it extremely difficult or
impossible for the individual Rule 23 Class members to redress the wrongs done to them. On the
other hand, important public interests will be served by addressing the matter as a class action.
The adjudication of individual litigation claims would result in a great expenditure of Court and
public resources; however, treating the claims as a class action would result in significant saving
of these costs. The prosecution of separate actions by individual class members would create a
risk of inconsistent and/or varying adjudications with respect to the individual Rule 23 Class
members, establishing incompatible standards of conduct for Defendants and resulting in the
impairment of the Rule 23 Class members rights and the disposition of their interests through
28
actions to which they were not parties. The issues in this action can be decided by means of
common, class-wide proof. In addition, if appropriate, the Court can, and is empowered to,
fashion methods to efficiently manage this action as a class action.
250. Upon information and belief, Defendants and other employers throughout the
state violate S.C. Code Ann. 41-10-10, et seq. Current employees are often afraid to assert their
rights out of fear of direct and indirect retaliation. Former employees are fearful of bringing
claims because doing so can harm their employment, future employment, and future efforts to
secure employment. Class actions provide class members who are not named in the complaint a
degree of anonymity, which allows for the vindication of their rights while eliminating or
reducing these risks.
251. This action is properly maintainable as a class action under Federal Rule of Civil
Procedure 23(b)(3).
252. Common questions of law and fact exist as to the Rule 23 Class that predominate
over any questions only affecting Plaintiffs and the Rule 23 Class members individually and
include, but are not limited to:
a. Whether Defendants took deductions from the wages and/or tips of Plaintiffs and
the Rule 23 Class members;
b. Whether Defendants policy of failing to pay Plaintiffs and the Rule 23 Class was
instituted willfully or with reckless disregard of the law; and
c. The nature and extent of class-wide injury and the measure of damages for those
injuries.
VI. Causes of Action
Count 1
29
Failure to Pay Minimum Wages - Fair Labor Standards Act

(On Behalf of Plaintiffs and the FLSA Collective)
253. Plaintiffs restate and incorporate the foregoing allegations as if fully rewritten
herein.
254. Plaintiffs and the FLSA Collective are or were non-exempt, hourly employees
entitled to receive no less than minimum wage for all hours worked.
255. Plaintiffs and the FLSA Collective were not given proper notice of the tip
provisions of the FLSA.
256. Plaintiffs and the FLSA Collective were denied proper minimum wage because
Defendants paid them $2.125 per hour, which is less than the permissible minimum wage minus a
tip credit.
they were required to share tips with parties and individuals who are not permitted to be included
in a valid tip pool, including Defendants themselves, Defendants managers, and Defendants
back of the house employees.
they were required to spend more than 20% of their time at work engaged in a non-tipped
capacity.
259. As a result of Defendants policies and practices, they were not permitted to take
a tip credit from the wages of Plaintiffs and the FLSA Collective.
260. By the acts and conduct described above, Defendants willfully violated the
provisions of the FLSA and disregarded the rights of Plaintiffs and the FLSA Collective.
30
261. Plaintiffs and the FLSA Collective have been damaged by Defendants willful
failure to pay minimum wage as required by law.
262. As a result of Defendants willful violations, Plaintiffs and the FLSA Collective
are entitled to damages, including, but not limited to, unpaid wages, liquidated damages, costs,
and attorneys fees.
Count 2
Failure to Pay Overtime Wages Fair Labor Standards Act
(On Behalf of Plaintiffs and the FLSA Collective)
herein.
264. Plaintiffs and the FLSA Collective worked more than forty hours in one or more
workweeks.
265. When Plaintiffs and the FLSA Collective worked overtime hours, they were
required to clock out, or they had their hours reduced manually by Defendants managers, so
their records would not indicate that they worked overtime hours.
266. When Plaintiffs and the FLSA Collectives overtime hours were recorded by
Defendants, they were paid at the wrong rate.
267. As a result, Plaintiffs and the FLSA Collective were not properly compensated for
hours worked in excess of 40 hour per week.
268. By not paying Plaintiffs and the FLSA Collective proper overtime wages for time
worked in excess of forty hours in a workweek, Defendants have willfully violated the FLSA.
269. As a result of Defendants willful violations, Plaintiffs and the FLSA Collective
are entitled to damages, including, but not limited to, unpaid wages, liquidated damages, costs,
and attorneys fees.
31
Count 3
Unlawful Deductions from Wages South Carolina Payment of Wages Act
(On Behalf of Plaintiffs and the Rule 23 Class)
herein.
271. Defendants are an employer as defined by the SCPWA.
272. Defendants employed Plaintiffs and the Rule 23 Class within the state of South
Carolina.
273. Money received by Plaintiffs and the Rule 23 directly as tips or from the tip pool
were wages as defined by SCPWA, 41-10-10(2).
274. Defendants illegally deducted amounts from the wages of Plaintiffs and the Rule
23 Class without providing proper notice as required by S.C. Code Ann. 41-10-30(A).
275. Specifically, Defendants required Plaintiffs and the Rule 23 Class to pay 3% of
the sales they obtained out of their tips directly to Defendants.
276. Defendants unlawful deduction policy was instituted willfully.
277. By making deductions from the tip income of Plaintiffs and the Rule 23 Class,
Defendants have violated the SCPWA.
278. As a result of Defendants violations of the SCPWA, Plaintiffs and the Rule 23
Class are entitled to the unlawfully deducted tips, treble damages, attorneys fees, costs, and
injunctive relief.
Count 4
Failure to Pay Overtime Wages Fair Labor Standards Act
(On Behalf of Zachary Tarry for his employment as a bartender / assistant manager)
279. Plaintiff Zachary Tarry restates and incorporates the foregoing allegations as if
fully rewritten herein.
32
280. Tarry worked more than forty hours in one or more workweeks during his time
working as a bartender / assistant manager.
281. Tarry did not clock in and out when he worked as a bartender / assistant manager.
282. Tarry was instead paid a shift pay for each shift he worked. At first he was paid
$50 per shift, and eventually he was paid $100 per shift. He was also given a percentage of the
servers tip-out, which was typically .0015% or .002% of sales.
283. Tarrys paystubs indicate that he worked 80 hours over a two week period for the
majority of time he worked as a bartender / assistant manager, but he regularly worked between
45 and 65 hours per week as a bartender /assistant manager.
284. When Tarry worked 5 shifts per week, his paystubs indicate that he worked 40
hours per week. However, when Tarry worked less than 5 days per week, his pay was decreased.
285. As a result, Tarry was not properly compensated for hours worked in excess of 40
hour per week.
286. By not paying Tarry proper overtime wages for time worked in excess of forty
hours in a workweek, Defendants have willfully violated the FLSA.
287. As a result of Defendants willful violations, Tarry is entitled to damages,
including, but not limited to, unpaid wages, liquidated damages, costs, and attorneys fees.
288.
WHEREFORE, Plaintiffs Chris Gagliastre, Zachary Tarry, and Olga Zayneeva pray for
all of the following relief:
A. Designation of this action as a collective action on behalf of the collective action
members and prompt issuance of notice to all similarly-situated members of an opt-in class,
apprising them of this action, permitting them to assert timely wage and hour claims in this
33
action, and appointment of Plaintiffs and their counsel to represent the collective action
members.
B. Unpaid minimum wages, overtime pay, and an additional and equal amount as
liquidated damages pursuant to the FLSA and supporting regulations;
C. A declaratory judgment that the practices complained of herein are unlawful
under the FLSA.
D. Certification of this case as a class action pursuant to Rule 23 of the Federal Rules
of Civil Procedure;
E. Designation of Plaintiffs as representatives of the Rule 23 Class and counsel of
record as Class Counsel;
F. A declaratory judgment that the practices complained of herein are unlawful
under the SCPWA.
G. An award of unlawfully deducted tips due under the SCPWA.
H. An award of treble damages under the SCPWA.
I. An award of prejudgment and post-judgment interest.
J. An award of costs and expenses of this action, together with reasonable attorneys
fees and expert fees.
K. Such other legal and equitable relief as the Court deems appropriate.
34
Respectfully submitted,
/s/ Patrick McLaughlin

Patrick McLaughlin
Wukela Law Firm
403 Second Loop Rd.
PO Box 13057
Florence, SC 29504-3057
843-669-5634 (Phone)
843-669-5150 (Fax)
([email protected])
Andrew Biller (pro hace vice filing forthcoming)

Trial Counsel
Andrew Kimble (pro hace vice filing forthcoming)
Markovits, Stock & DeMarco, LLC
3825 Edwards Road, Suite 650
513-651-3700 (Phone)
513-665-0219 (Fax)
([email protected])
([email protected])
Counsel for Plaintiffs
35
Jury Demand
Plaintiffs hereby demand a jury trial by the maximum persons permitted by law on all
issues herein triable to a jury.
/s/ Patrick McLaughlin
36

Capt. George's Class Action Complaint

Uploaded by

Copyright:

Available Formats

Capt. George's Class Action Complaint

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Capt. George's Class Action Complaint

Uploaded by

Copyright:

Available Formats

4:17-cv-01308-RBH Date Filed 05/19/17 Entry Number 1 Page 1 of 36

In the United States District Court

Chris Gagliastre, Zachary Tarry, and Olga

On behalf of themselves and those

Capt. Georges Seafood Restaurants, LP; Jury Trial Requested

Class and Collective Action Complaint

Kristina Chastain; and Doe Corporations 1-4 (collectively Defendants or Captain

Defendants willful failure to compensate Plaintiffs and similarly-situated individuals with

Ann. 41-10-10, et seq.

Virginia as a single integrated enterprise.

3. Captain Georges was founded by George and Sherry Pitsilides in 1979.

employees during the tourist seasons.

house, i.e., to the restaurant itself.

9. As a result, Defendants are regularly paid more by their servers in

misappropriated tips than Defendants pay to servers in wages.

not properly included in the servers tip pool.

11. Defendants require servers to work off the clock.

completing non-tipped sidework.

respect to wages paid, and with respect to tip pooling.

violations of the FLSA wage and hour provisions by Defendants.

remedy violations of the SCPWA, S.C. Code Ann. 40-10-30(A).

I. Jurisdiction and Venue

Plaintiffs FLSA claims.

South Carolina law claims.

20. Venue in this Court is proper under 28 U.S.C. 1391(b).

21. Plaintiff Chris Gagliastre is an individual residing in Horry County, South

with this Complaint.

meaning of the FLSA.

with this Complaint.

meaning of the FLSA.

32. Defendants are part of a single integrated enterprise.

Nicole Perkins, and Kristina Chastain.

Captain Georges restaurants.

35. During all relevant times, Defendants permitted employees to transfer or be

shared by and between the Captain Georges restaurants without retraining.

37. Defendants suffer or permit Plaintiff and other servers to work.

Plaintiffs work and the work of similarly situated servers.

Capt. Georges Seafood Restaurants, LP

is a foreign limited partnership, with its headquarters in Virginia.

41. Upon information and belief, Capt. Georges Seafood Restaurants, LP is

headquartered at 1956 Laskin Road, Virginia Beach, Virginia 23454.

paystubs for work they completed for Defendants.

43. Capt. Georges Seafood Restaurants, LP is an employer of Plaintiffs and

similarly situated servers as that term is defined by the FLSA.

44. Capt. Georges Seafood Restaurants, LP applies or causes to be applied

45. Capt. Georges Seafood Restaurants, LP maintained control, oversight, and

firing, disciplining, timekeeping, payroll, expense reimbursements, and other practices.

46. Capt. Georges Seafood Restaurants, LP has been and continues to be an

as used in the FLSA.

Captain Georges of South Carolina, LP

48. Defendant Captain Georges of South Carolina, LP is a foreign limited

partnership, with its headquarters in Virginia.

50. Captain Georges of South Carolina, LP is headquartered at 1956 Laskin Road,

Virginia Beach, Virginia 23454.

51. Captain Georges of South Carolina, LP is an employer of Plaintiffs and

similarly situated servers as that term is defined by the FLSA.

52. Captain Georges of South Carolina, LP applies or causes to be applied

53. Captain Georges of South Carolina, LP maintained control, oversight, and

firing, disciplining, timekeeping, payroll, expense reimbursements, and other practices.