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Guevara-Salgado v. Hayes-Meninno, Inc.

United States District Court, D. Massachusetts

August 31, 2015

MARIO H. GUEVARA-SALGADO, Plaintiff,
v.
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

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          For 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.

         For 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.

         For 338 Broadway, LLC, Reach and Apply Defendant: Ethan Warren, Bradley Moore Primason Cuffe & Weber, LLP, Lynn, MA.

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         MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S MOTION FOR REAL ESTATE ATTACHMENT

         Judith Gail Dein, United States Magistrate Judge.

         I. INTRODUCTION

         The 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 Hayes.[1]

         By his 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; and failed

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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.

         This 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).[2] 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 ALLOWED.

         II. STATEMENT OF FACTS[3]

         Businesses of the Defendants

         As 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.

         It is 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

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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.

         This 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[4] 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[5] 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.

         Overview of Plaintiff's Claims

         Guevara 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.

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          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.

         According 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.

         Guevara 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. ¶ ¶ 27-28.

         All 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. ¶ ¶ 38-43.

         The 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 ...


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