Vargas v. Salazar & Son's Group LLC
4:23-cv-04267
| S.D. Tex. | Jul 8, 2025Background
- Plaintiff, Concepcion Vargas, worked as a waitress at Maria Rita’s Tex-Mex Kitchen and was terminated on May 11, 2023.
- She filed suit pro se alleging violations of the Fair Labor Standards Act (FLSA), including claims regarding minimum wage, overtime, tip pooling, dual jobs, and retaliation.
- Defendants removed the case to federal court and repeatedly moved to dismiss or strike claims; the court narrowed the case to core FLSA issues.
- Both parties moved for summary judgment on all remaining claims.
- The court granted in part Defendants’ motion for summary judgment, denied Plaintiff’s motion, and found key fact issues remained only as to FLSA tip credit notification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FLSA Tip Credit Notice | Was not properly informed about the tip credit provisions | Plaintiff was verbally informed; received handbook explaining tip credit | Fact issue; summary judgment denied to both parties |
| FLSA Tip Pooling | Tip pool included non-tipped employees and lacked her consent | Tip pool only included customarily tipped staff; consent unnecessary | Defendants entitled to summary judgment |
| Dual Jobs (Non-tipped Tasks) | Was paid tip credit for over 10 hours/week of unrelated, non-tipped work | All tasks were part of server’s tipped occupation under 5th Circuit law | Defendants entitled to summary judgment |
| Overtime Pay | Not paid overtime for hours worked over 40/week | Records show never worked over 40 hours/week; Plaintiff’s claims are unsubstantiated | Defendants entitled to summary judgment |
| FLSA Retaliation | Fired for complaining about unfair table assignments affecting tips | Terminated for walking out mid-shift; complaints not protected FLSA activity | Defendants entitled to summary judgment |
Key Cases Cited
- Montano v. Montrose Rest. Assocs., 800 F.3d 186 (5th Cir. 2015) (defining employer’s FLSA tip credit burden)
- Steele v. Leasing Enters., 826 F.3d 237 (5th Cir. 2016) (tip credit compliance and employer burden)
- Flores v. FS Blinds, L.L.C., 73 F.4th 356 (5th Cir. 2023) (overtime burden and proof in FLSA cases)
- Hagan v. Echostar Satellite, LLC, 529 F.3d 617 (5th Cir. 2008) (protected activity in FLSA retaliation)
- Restaurant Law Ctr. v. United States Dep't of Lab., 120 F.4th 163 (5th Cir. 2024) (dual jobs regulation and scope of tipped occupation)