United States District Court, D. Massachusetts
MARIO H. GUEVARA-SALGADO, Plaintiff,
HAYES-MENINNO, LLC, d/b/a ROLLY'S TAVERN ON THE SQUARE, WENDY MENINO HAYES, and ROLAND JOHN HAYES, Defendants. and 338 BROADWAY, LLC, Reach and Apply Defendant
Mario H Guevara-Salgado, Plaintiff: Mernaysa Rivera-Bujosa,
Rivera Bujosa Law PC, Charlestown, MA; Michaela C. May, Law
Office of Michaela C. May, Arlington, MA.
Hayes-Meninno, LLC, doing business as Rollys Tavern on the
Square, Wendy Meninno Hayes, Roland John Hayes, Defendants:
Ethan Warren, LEAD ATTORNEY, Bradley Moore Primason Cuffe &
Weber, LLP, Lynn, MA.
Broadway, LLC, Reach and Apply Defendant: Ethan Warren,
Bradley Moore Primason Cuffe & Weber, LLP, Lynn, MA.
OF DECISION AND ORDER ON PLAINTIFF'S MOTION FOR REAL
Gail Dein, United States Magistrate Judge.
plaintiff, Mario H. Guevara-Salgado (" Guevara" ),
has brought this action against his employer, Hayes-Meninno,
LLC d/b/a Rolly's Tavern on the Square ("
Rolly's Tavern" ), and its officers and alleged
owners, Wendy Meninno Hayes and her husband Roland John
Hayes. Rolly's Tavern, a restaurant, is located at 338
Broadway, Lynn, Massachusetts. That property is owned by
reach-and-apply defendant 338 Broadway, LLC which, the
plaintiff alleges, is also owned by Wendy and Roland
complaint, Guevara alleges that the defendants failed to pay
him overtime compensation in violation of the Fair Labor
Standards Act (" FLSA" ), 29 U.S.C. §
207(a)(1); failed to pay him wages in violation of the
Massachusetts Wage Act, Mass. Gen. Laws ch. 149, § 148;
to pay him minimum wages in violation of Mass. Gen. Laws ch.
151, § 1, and the FLSA, 29 U.S.C. § 206, in
connection with his extensive work at Rolly's Tavern and
the Hayes' related businesses during the period of
approximately November 2012 through February 28, 2015.
Guevara has also asserted common law claims for breach of
contract, breach of the implied covenant of good faith and
fair dealing, quantum meruit, promissory estoppel, and for
reach-and-apply relief. The defendants, while admitting that
some amounts are due Guevara, dispute his claim of hours
worked, disagree as to the scope of his employment
responsibilities, and contend that he was an independent
contractor and not an employee in connection with some of the
services provided. In addition, they contend that Wendy
Meninno has no liability for any unpaid wages.
matter is before the court on " Plaintiff's Motion
for Approval of Attachment of Real Estate in the Name of the
Defendant Wendy Meninno Hayes, a.k.a. Wendy M. Hayes, and the
Reach & Apply Defendant, 338 Broadway LLC" (Docket No.
9). By this motion, Guevara is seeking a
real estate attachment in the amount of $250,000.00 against
the home of Wendy and Roland Hayes located at 1 Boulder Way,
Lynn, Massachusetts, which is owned by Wendy M. Hayes, and
the real estate located at 338 Broadway, Lynn, Massachusetts,
which is owned by the reach-and-apply defendant 338 Broadway
LLC. After careful consideration of the written and oral
arguments of the parties, this court finds that the plaintiff
is likely to prevail on the merits of his claim for
violations of the FLSA and Wage Act, and that, while the
amount of potential damages is very much in dispute, the
plaintiff is likely to recover more than the amount of the
requested attachment. This court also finds that the
plaintiff has established that he is likely to prevail on the
merits of his claim that Wendy Hayes is personally liable for
the amounts due. Therefore, and for the reasons detailed more
fully herein, the motion for a real estate attachment is
STATEMENT OF FACTS
of the Defendants
noted above, Rolly's Tavern is a restaurant located in
Lynn, Massachusetts. In addition, for a period of time the
defendants operated " Rolly's on the Green," a
restaurant at the municipal golf course in Lynn. RH Aff.
¶ 13. Rolly's Tavern also catered various functions
at the golf course, restaurant and elsewhere. Id.
¶ 14. The restaurant at the golf course closed in 2013,
but the catering business continued throughout the period of
Guevara's employment. See id.
undisputed that both Roland and Wendy Hayes are publicly
identified as the managers of the restaurant. See RH Aff.
¶ 1; WH Aff. ¶ 1. Nevertheless, the defendants seek
to portray Wendy Hayes as
having only marginal involvement in the day-to-day operations
of the business. Thus, they assert, " Wendy Hayes was
never in charge of, and never exercised authority in hiring,
firing, or scheduling of kitchen staff throughout the time
period Guevara was employed." RH Aff. ¶ 23. Rather,
that was Roland's responsibility. Id.; see also
WH Aff. ¶ ¶ 1, 2 (while Wendy was " more
actively involved" in the day-to-day operations of the
restaurant before she became ill in 2013, she was "
never involved in the hiring, firing, scheduling, and payment
decisions of the kitchen and/or cleaning operations, all of
which were done by my husband Roland Hayes." ).
Noticeably, the defendants do not purport to describe
Wendy's responsibilities in connection with the catering
business, or her supervision of the plaintiff. According to
Guevara, both Roland and Wendy Hayes " had the power to
determine [his] wages, and so they did." Pl. Aff. ¶
3. They also both " had the power to set [his] work
schedule and did so periodically." Id. The
evidence submitted to date supports Guevara's contention.
court has scrutinized the parties' affidavits as well as
the multitude of text messages between the plaintiff and
Roland and Wendy Hayes submitted by the plaintiff. Based on
this review, this court concludes that, for present purposes,
the plaintiff has established that Wendy was actively
involved in directing Guevara's employment
responsibilities. Thus, there may have been a division of
responsibility between Roland and Wendy, with Roland having
primary responsibility for running the
restaurant and Wendy responsible for running the
catering business (including events held at the restaurant),
but Guevara clearly worked under both of their supervision.
See Pl. Mem. at Exs B & C. With respect to Wendy, in
particular, she directed him to help set up events, pick up
inventory, run errands, plan menus and even how to cook
various items. See, e.g., 8/20/13 text message from Wendy to
Guevara (" I want to cancel caprese salad and have you
make broccoli salad insted [sic]. Triple this recipe. Ok. 2
heads broccoli, 1/2 medium red onion, 1/2 cup raisins, 1/2
cup crumbled bacon, 1 cup mayo, 1/2 cup sugar, 2 tablespoon
red wine vinegar. Ok" ). She also told him what time to
be in certain places and to perform certain tasks. As
detailed more fully below, there is sufficient evidence at
this stage to establish that Wendy qualifies as Guevara's
employer for purposes of the wage and hours laws.
of Plaintiff's Claims
began working for Rolly's Tavern in or about November
2011. Pl. Supp. Aff. ¶ 3. According to Guevara, he first
began working one day a week, then about three days a week,
and then, beginning in or about November 2012, five days a
week. Pl. Aff. at ¶ ¶ 2, 5-6. According to Guevera,
his responsibilities included " cleaning, cooking at the
restaurant and outside parties, purchasing food, paper,
coffee, and soda for the restaurant, and checking that the
restaurant's inventory was delivered in a timely
manner." Id. ¶ 4. His responsibilities
also included calculating employees' hours and pay,
making deposits, paying certain bills, and even distributing
some wages that were paid in cash. Pl. Supp. Aff. ¶ 9.
Guevara contends that while his full time working hours were
regularly 45 hours per week, he did not receive compensation
for any hours in excess of 40. Pl. Aff. ¶ ¶ 6, 8.
His hours continued to increase until around Christmas of
2012, when, Guevara alleges, he began working approximately
77 hours per week, still without compensation for any hours
over 40. Id. at ¶ ¶ 10-11. It is
undisputed that Guevara's hours were not recorded and he
did not punch a time clock. Id. ¶ 7.
to Guevara, he went many weeks without pay or with only
partial payments of amounts due. Pl. Aff. ¶ ¶
14-15. In 2013, he twice confronted Roland Hayes about the
situation. Id. ¶ ¶ 16-19. Guevara contends
that, in response, Roland asked him to be kitchen manager,
asked him to wait for his past-due wages, and promised him
50% ownership of the business and 50% of the profits in
exchange. Id. ¶ 20. Guevara allegedly agreed to
that arrangement, as a result of which he went for as much as
six months without receiving any wages for his work.
Id. ¶ ¶ 23-24. The defendants deny that
such a promise was ever made. RH Aff. ¶ 21.
alleges that in or about March 2014 his hours increased
dramatically to approximately 90-100 hours per week, a
situation that continued to January 19, 2015, at which time
he tendered his resignation. Pl. Aff. ¶ ¶ 25-26.
Allegedly at Roland Hayes' request, he worked for another
month, still without compensation, with his last day of work
being approximately February 28, 2015. Id. ¶
parties agree that on February 16, 2015, Roland Hayes emailed
Guevara a letter stating that Rolly's Tavern owed him
$77,214.00 for his work as a " subcontractor"
providing " cleaning and janitorial services in both the
public restaurant areas and the kitchen and preparation
areas[,]" " general maintenance on the physical
property both inside and outside the premises[,]" and
" inventory control of both cleaning supplies and
restaurant food products." Id. ¶ 35; Pl.
Mem. Ex. E (Docket No. 11-5). The letter included a payment
schedule. Pl. Mem. Ex. E. A modified letter providing a
different payment schedule was sent on March 19, 2015. Pl.
Aff. ¶ 37; Pl. Mem. Ex. F (Docket No. 11-6). These
letters were signed by Roland Hayes as " CEO" and
printed on Rolly's Tavern letterhead. Pl. Mem. at Exs. E
& F. Guevara contends that a great deal of pressure was put
on him to countersign and accept the proposals in the
letters, and drop his demands for wages. Pl. Aff. ¶
defendants admit that Guevara was owed money when he left,
and assert that Guevara provided them with the figure of
$77,214.00. RH Aff. ¶ ¶ 17-19. While Guevara does
not deny providing this figure, he does contend that this
amount is " only a fraction of the wages the Defendants
owe me." Pl. Aff. ¶ 36. It is undisputed that from
March 3, 2015 through June 4, 2015, when the defendants found
out about this lawsuit, Guevara was paid $2,500 almost weekly
in accordance with the letter of March 19, 2015. RH Aff.
¶ 20. According to the plaintiff, the defendants paid
him $32,000 before the litigation started and ...