United States District Court, E.D. Wisconsin
DAWN STEVENS, individually and on behalf of all others similarly situated, Plaintiff,
OVAL OFFICE, LLC, d/b/a OVAL OFFICE GENTLEMEN'S CLUB, JENNIFER L. DECASTER, and GARY T. DECASTER, SR., Defendants.
DECISION AND ORDER DENYING DEFENDANTS' MOTION FOR
William C. Griesbach, Chief Judge
Dawn Stevens, an “exotic” dancer, filed a
putative collective action against the Oval Office
Gentlemen's Club, an adult entertainment business
allegedly owned and operated by Defendants Oval Office, LLC,
Jennifer DeCaster, and Gary DeCaster. Plaintiff brings this
action asserting violations of the Fair Labor Standards Act,
29 U.S.C. § 201, et seq. (FLSA), Wisconsin wage
and hour laws, and Wisconsin Statute § 103.455, claiming
that Defendants improperly classified her as an independent
contractor instead of an employee, failed to pay minimum
wages, and improperly deducted fines imposed for poor
workmanship from her pay.
November 21, 2016, Defendants moved to dismiss
Plaintiff's Wis.Stat. § 103.455 claim of illegal and
unauthorized deductions from wages pursuant to Federal Rule
of Civil Procedure 12(b)(6). Defendants argue that the fines
deducted from wages to incentivize good performance do not
violate Wis.Stat. § 103.455. On December 12, 2016,
Plaintiff filed an amended complaint to clarify her
allegations regarding the wrongful deductions. In their reply
brief, Defendants requested that the court extend their
motion for partial dismissal to Plaintiff's amended
complaint and dismiss Plaintiff's claim in the amended
complaint alleging illegal and unauthorized deductions from
wages in violation of Wis.Stat. § 103.455. After a
review of the amended complaint, the court finds that the
amended complaint does not moot Defendants' motion to
dismiss because it does not resolve the legal issues raised
in the motion. As such, the court will extend Defendants'
motion for partial dismissal to the amended complaint. For
the reasons below, however, Defendants' motion will be
following factual allegations are taken directly from
Plaintiff's amended complaint and are accepted as true
for the purpose of the motion for partial dismissal.
Ameritech Corp. v. McCann, 297 F.3d 471, 585 (7th
Cir. 2002). The putative plaintiffs in this action are or
were exotic dancers at an establishment operated by
Defendants called the Oval Office Gentlemen's Club.
Plaintiff claims she was deemed an “independent
contractor” at the Oval Office and not paid any hourly
wages. Plaintiff disputes Defendants' characterization of
the dancers as independent contractors, noting that the Oval
Office “retained the absolute right to control and
direct the work of” the dancers since October 21, 2013.
(Am. Compl. at ¶ 34, ECF No. 19.) She alleges that the
Oval Office determines the fee customers are required to pay
for each dance performed. A portion of the fee paid by the
customer is retained by the Oval Office as a “house
fee” and the balance is paid to the dancer. The
entirety of the compensation received by dancers consists of
the fees and tips paid by the customers.
also asserts that Defendants impose various
“fines” for alleged violations of the Oval
Office's company policies for poor workmanship, including
getting to the stage late; starting a routine late; leaving
the stage before the next dancer arrives; failing to spend
enough time on the floor with customers to sell additional
services; failing to fully remove all clothing, except for
underwear, by the end of the first song when dancing on
stage; spending too much time in the dressing room; and not
dressing according to the Oval Office's dress code.
(Id. at ¶¶ 50, 54.) The fines assessed by
Defendants have not been authorized in writing by Plaintiff,
and Defendants have not provided Plaintiff the opportunity to
contest them. (Id. at ¶¶ 51-52.) As a
result of the foregoing allegedly illegal pay and deduction
policies, Plaintiff asserts claims for unpaid minimum wages
and overtime compensation under the FLSA and Wisconsin wage
and hour laws, and for illegal deductions under Wis.Stat.
motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the complaint to state a claim upon which
relief may be granted. Fed.R.Civ.P. 12(b)(6). Rule 8(a)(2)
mandates that a complaint need only include “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). The Supreme
Court has held that a complaint must contain factual
allegations that “raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). While a plaintiff is
not required to plead detailed factual allegations, he or she
must plead “more than labels and conclusions.”
Id. A simple, “formulaic recitation of the
elements of a cause of action will not do.”
Id. In evaluating a motion to dismiss, the court
must view the plaintiff's factual allegations and any
inferences reasonably drawn from them in a light most
favorable to the plaintiff. Yasak v. Retirement Bd. of
the Policemen's Annuity & Benefit Fund of Chi.,
357 F.3d 677, 678 (7th Cir. 2004).
issue before the court is whether Defendants' deduction
of Plaintiff's wages, as alleged in the amended
complaint, fall within the scope of deductions prohibited
under Wis.Stat. § 103.455.
No employer may make any deduction from the wages due or
earned by any employee, who is not an independent contractor,
for defective or faulty workmanship, lost or stolen property
or damage to property, unless the employee authorizes the
employer in writing to make that deduction or unless the
employer and a representative designated by the employee
determine that the defective or faulty workmanship, loss,
theft or damage is due to the employee's negligence,
carelessness, or willful and intentional conduct, or unless
the employee is found guilty or held liable in a court of
competent jurisdiction by reason of that negligence,
carelessness, or willful and intentional conduct.
Wis. Stat. § 103.455. Plaintiff argues that the fines
assessed by Defendants fall within Wis.Stat. § 103.455
because they are deductions for faulty workmanship. She
contends that the definition of “workmanship” is
sufficiently broad to encompass the deductions made for
failing to perform exotic dances in compliance with
Defendants' requirements. Conversely, Defendants argue
that Plaintiff's definition of workmanship is too broad
and that the statute only prohibits employers from making
deductions from wages in order to recoup actual business
losses. This is a question of statutory interpretation.
Wisconsin law, “[t]he primary goal of statutory
interpretation is to determine the legislature's
intent.” Peters v. Menard, Inc., 224 Wis.2d
174, 185, 589 N.W.2d 395 (1999). The search for legislative
intent begins with the plain language of the statute.
State ex rel. Kalal v. Circuit Court for Dane Cnty.,
2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110. When
the meaning of the statute cannot be discerned from the
language of the statute itself, i.e., when the statute is
ambiguous, resort is then made to extrinsic aids such as the
statute's history, purpose, scope, and context to discern
the legislature's intent. Miller v. Wal-Mart Stores,
Inc., 219 Wis.2d 250, 271, 580 N.W.2d 233 (1998).
“[A] statute is ambiguous if it is capable ...