     Case: 17-20223   Document: 00514379666     Page: 1   Date Filed: 03/09/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                                          Fifth Circuit

                                                                         FILED
                                                                      March 9, 2018
                                 No. 17-20223
                                                                      Lyle W. Cayce
                                                                           Clerk
DAVID MONTANO, Individually and on Behalf of Other Employees
Similarly Situated,

                  Plaintiff - Appellant

v.

MONTROSE RESTAURANT ASSOCIATES, INCORPORATED, doing
business as Restaurant Associates Payroll, also known as Tony's, also known
as Tony's Restaurant,

                  Defendant - Appellee

**************************************************************
GASTON NIEVES

                  Plaintiff - Appellant

v.

MONTROSE RESTAURANT ASSOCIATES, INCORPORATED, doing
business as Restaurant Associates Payroll, also known as Tony's and Tony's
Restaurant,

                  Defendant - Appellee


                Appeal from the United States District Court
                     for the Southern District of Texas
                           USDC No. 4:12-CV-153
                          USDC No. 4:12-CV-3111
     Case: 17-20223      Document: 00514379666         Page: 2    Date Filed: 03/09/2018



                                      No. 17-20223

Before DAVIS, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        This is an appeal from a Fair Labor Standards Act (“FLSA”) case. The
Appellants lost a jury trial and appeal on the grounds that the jury instructions
were erroneous and the district court erred by failing to give their proposed
instruction. Because we find no plain error, we AFFIRM.
                                 I.     BACKGROUND
        Appellants, David Montano and Gaston Nieves, were waiters at Tony’s,
a well-known Houston restaurant. They filed this action arguing that Tony’s
violated the FLSA by forcing them to share their tips with the restaurant’s
“coffeemen.” The district court granted summary judgment for the restaurant.
This court held that there was a genuine issue of material fact regarding
whether the “coffeemen” were employees who “customarily and regularly
receive tips” under the FLSA. Montano v. Montrose Restaurant Assocs., Inc.,
800 F.3d 186, 194-95 (5th Cir. 2015). In order to reach this decision, this court
noted that the “common thread” of many cases was “to require a tipped
employee to have more than de minimis interaction with the customers who
leave the undesignated tips.” Montano, 800 F.3d at 193. This court accordingly
held that when determining whether an employee qualified under this rule the
court or factfinder “must consider the extent of an employee’s customer
interaction. This rule is faithful to the goal of the inquiry: determining the
customer’s intent.” Id. The opinion also stated that “[M]any traditionally non-
tipped employees aid waiters and are important for direct diner service,” and
that:



        *Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.

                                             2
      Case: 17-20223   Document: 00514379666      Page: 3   Date Filed: 03/09/2018



                                   No. 17-20223

       [t]he central difference between employees who are traditionally
       tipped and those who are not is that the former work primarily in
       the front of the house where they are seen by and interact with
       customers, while the latter work primarily or exclusively in the
       back of the house.

Id.
       On remand, the district court conducted a jury trial. The court gave the
following challenged jury instructions:
       5. Restaurant customers usually leave cash or add a tip to a charge
       receipt without indicating how it is to be allocated among the
       workers on the team whom they intend to tip. Your job is to decide
       whether the coffeeman is one of the workers whom customers
       would ordinarily intend to compensate with their tips.

       6. The coffeeman must directly and substantially assist with
       customer service and have more than minimal exposure to
       customers.


The district court refused to give the following proposed instruction:
       A tipped employee, or an employee who “customarily and
       regularly.” receives tips is:
       1. An employee who works primarily or exclusively in the front of
       the house;
       2. An employee who performed important customer service
       functions;
       3. An employee who had direct and more than simply a minimal
       interaction with customers.


(footnote omitted). The jury ruled for the restaurant. The waiters appeal on
the grounds that the district court erred in its jury instructions and failed to
give their proposed instruction.
                        II.    STANDARD OF REVIEW
       This Court normally reviews jury instructions for abuse of discretion.
Janvey v. Dillon Gage, Inc. of Dallas, 856 F.3d 377, 388 (5th Cir. 2017) (citation

                                          3
    Case: 17-20223     Document: 00514379666       Page: 4   Date Filed: 03/09/2018



                                    No. 17-20223

omitted). If, however, the party failed to preserve error, the instructions are
reviewed for plain error. Kelly v. Boeing Petroleum Servs., Inc., 61 F.3d 350,
361 (5th Cir. 1995). In order to preserve error in a jury instruction for appeal,
the party must “stat[e] distinctly the matter objected to and the grounds of the
objection.” Id. at 361 (citation omitted). The plain error standard requires the
party to show “‘the deficient charge [wa]s likely responsible for an incorrect
verdict which in itself creates a substantial injustice’ or resulted in a ‘ “plain
error” so fundamental as to result in a miscarriage of justice.’” Id. at 362
(footnote and citations omitted).
                               III.    DISCUSSION
      The FLSA allows employers to pay below minimum wage to “tipped
employee[s].” 29 U.S.C. § 203. Employers may not force tipped employees to
share their tips with other employees unless the other employees “customarily
and regularly receive tips.” Id.
      Appellants argue that the district court should have given their proposed
instruction, which stated that a tipped employee “works primarily or
exclusively in the front of the house.” Appellants also argue the court erred by
failing to include similar language in its instructions. As correctly pointed out
by the Appellee, Appellants explicitly waived this argument at the charge
conference. Appellants stated in the charge conference: “It actually lists three
things because the Fifth Circuit also says the key distinction is whether or not
the employee was at the front of the house or back of the house. But we're not
arguing that.” (emphasis added). Having so blatantly waived the issue in the
charge conference, Appellants cannot claim to have preserved it for appeal.
      Appellants also failed to preserve their other arguments. During the
charge conference, Appellants stated the first sentence of instruction number
5 “seem[ed] like an opinion” and suggested it could be replaced with “tips are

                                         4
    Case: 17-20223      Document: 00514379666     Page: 5   Date Filed: 03/09/2018



                                   No. 17-20223

for waiters and busboys only,” an argument they do not make on appeal.
Appellants also argued that the language in instruction number 6 should be
separated out, because it compounded the two factors together.              These
statements fail to distinctly point out the matter objected to, and Appellants’
arguments will be reviewed under the plain error standard.
         Appellants argue the district court’s instructions were improper because
they test what the customer intended.         Montano explicitly instructed the
district court that “the goal of the inquiry” is to “determin[e] the customer’s
intent.” Montano, 800 F.3d at 193. Appellants also argue that the instructions
“fail to capture the importance of customer interaction, not just exposure.”
Montano requires “more than a de minimis interaction” and the instruction
required “more than minimal exposure.”             Montano, 800 F.3d at 193.
Appellants argue that the phrase “directly and substantially assist with
customer service” ignores guidance in this court’s first decision, which stated
that “[m]any traditionally non-tipped employees aid waiters and are important
for direct diner service.” Montano, 800 F.3d at 193. Appellants also take issue
with the “more than minimal exposure” language because it is easier to meet
than the “front of the house” language.
         As noted above, Appellants stated they were not pursuing the “front of
the house” language in the charge conference. None of their other arguments
show that the instructions were “likely responsible for an incorrect verdict” or
resulted in a “‘plain error’ so fundamental as to result in a miscarriage of
justice.”
         For the foregoing reasons, we AFFIRM the judgment of the district
court.




                                         5
