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Dvornikov v. Landry's, Inc.

United States District Court, D. Massachusetts

March 31, 2017

ALEXANDR DVORNIKOV, ANTONIO CARDONA, JOSEPH McPHERSON, and JOSEPH QUINN, on behalf of themselves and all others similarly situated, Plaintiffs,
LANDRY'S INC. and CHLN, Inc., d/b/a CHART HOUSE BOSTON, Defendants.




         In this putative class action, Plaintiffs[1] bring suit against Landry's, Inc. and CHLN, Inc. (“Defendants”) for alleged violations of the Massachusetts Tips Act, Mass. Gen. Laws ch. 149, § 152A, and the Massachusetts Minimum Wage Law, Mass. Gen. Laws ch. 151, §§ 1, 7. Presently pending before this Court are Defendants' Motion for Summary Judgment [ECF No. 30] and Plaintiffs' Motion for Class Certification [ECF No. 26]. For the reasons stated below, the Court DENIES Defendants' Motion for Summary Judgment and GRANTS Plaintiffs' Motion for Class Certification.


         On June 25, 2015, Plaintiffs filed a complaint against Defendants in Massachusetts Suffolk County Superior Court. [ECF No. 2-1]. On September 3, 2015, Defendants removed this case from state court on the basis of diversity jurisdiction. [ECF Nos. 1, 2]. On July 13, 2016, Plaintiffs filed a motion to certify a class of servers who worked at the Chart House any time from June 25, 2012 to July 1, 2015 and to name the four Plaintiffs as class representatives. [ECF No. 26]. Defendants opposed the motion for class certification on August 10, 2016. [ECF No. 39]. On August 24, 2016, Plaintiffs filed a reply brief. [ECF No. 41].

         On July 29, 2016, Defendants filed their motion for summary judgment. [ECF No. 30]. Plaintiffs opposed the motion [ECF No. 42], and Defendants replied [ECF No. 45]. Defendants filed a statement and counterstatement of undisputed material facts under Rule 56.1 of the Local Rules of the United States District Court for the District of Massachusetts (LR 56.1). [ECF Nos. 32, 46]. Plaintiffs also filed a statement and counterstatement under LR 56.1. [ECF No. 43].


         a. Factual Background

         The following facts are undisputed, unless otherwise noted. Pursuant to LR 56.1, material facts contained within the LR 56.1 statement filed by the moving party are deemed admitted for purposes of this summary judgment motion unless controverted by the opposing party's statement. Additional relevant facts will be discussed as needed in this Memorandum and are presented in the light most favorable to the Plaintiffs, the nonmoving party.

         The Chart House is a restaurant located in Boston, Massachusetts. The Chart House has the following “front-of-the-house” employees: servers, bartenders, bussers, food runners, and hostesses. [ECF No. 43 ¶ 34]. At any one time in the past three years, the Chart House has employed between six and twelve hostesses, id. ¶ 35, with between two and eight hostesses scheduled per shift depending on the anticipated volume of business, id. ¶ 36.

         The Plaintiffs were all employed at the Chart House as servers during the relevant time period, which is June 25, 2012 to July 1, 2015. Plaintiffs were all paid at the service, or tipped, rate, meaning that they were paid at a rate below minimum wage plus customer tips. [ECF No. 32 ¶¶ 1-4]. Prior to July 1, 2015, the Chart House servers were required to participate in an automated, tip-sharing program implemented by Defendants' corporate office through which hostesses received 1% of gross sales, bussers received 1.3% of gross sales, bartenders received 1.2% of gross sales, and servers received the remainder. Id. ¶ 10. The tip-out amounts were calculated by a computer system when servers “cashed out” at the end of their shifts, and the amounts were paid to the appropriate non-server employees as part of their paychecks. [ECF No. 43 ¶ 32]. Hostesses were also paid at a rate below minimum wage, but at a rate higher than servers. Id. ¶ 37. Around July 1, 2015, hostesses were removed from the tip pool. [ECF No. 32 ¶ 10].

         During the relevant time period, the Chart House hostesses had three possible roles: Seater, Leader, and Greeter. Id. ¶ 14. The hostesses rotated through these roles in a given shift. Id. Although Defendants claim that the following descriptions do not capture the entirety of the hostesses' duties, the following descriptions describe at least a portion of the duties expected of each role. The Greeter was the hostess whom guests first saw upon entering the Chart House and was considered the “point person” among hostesses. [ECF No. 43 ¶ 39]. The Leader took care of reservations and answered phone calls, a role which often overlapped with the Greeter's. Id. ¶ 41. The Seater seated guests and monitored the floor to keep other hostesses up-to-date on the status of various tables. Id. ¶ 40.

         There is some evidence that the hostesses sometimes served guests directly by carrying their drinks from the bar to the table, clearing extra place settings, reconfiguring tables to accommodate parties, clearing tables, taking drink or food orders, and delivering bread to a table. [ECF No. 32 ¶¶ 15-26]. The parties vigorously dispute the extent to which Chart House hostesses served guests directly, what the Chart House hostesses' duties were, and whether those duties included serving food and beverages and clearing tables. The hostess' job description does not expressly list serving food and beverages to customers and clearing tables as a duty [ECF No. 43 ¶¶ 43-44], but Defendants argue that the job description document is not exclusive or exhaustive, [ECF No. 46 ¶ 43]. Similarly, the mandatory training quizzes that tested Chart House hostesses on a hostess' responsibilities did not seem to suggest that hostesses were responsible for serving food and drinks to customers or clearing tables. [ECF No. 43 ¶ 74]. Defendants argue that the quizzes, like the hostess job description, are not exhaustive. [ECF No. 46 ¶ 74].

         b. Legal Standard

         Summary judgment is appropriate where the movant can show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A fact is material if its resolution might affect the outcome of the case under the controlling law.” Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir. 2003) (citation omitted). “A genuine issue exists as to such a fact if there is evidence from which a reasonable trier could decide the fact either way.” Id. (citation omitted).

         “To succeed in showing that there is no genuine dispute of material fact, ” the moving party must point to “specific evidence in the record that would be admissible at trial.” Ocasio-Hernandez v. Fortuño-Burset, 777 F.3d 1, 4 (1st Cir. 2015). “That is, it must ‘affirmatively produce evidence that negates an essential element of the non-moving party's claim, ' or, using ‘evidentiary materials already on file . . . demonstrate that the non-moving party will be unable to carry its burden of persuasion at trial.'” Id. at 4-5 (quoting Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000)). “One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses . . . .” Celotex Corp. v. Catrett, 477 U.S.

         317, 323-24 (1986). Once the movant takes the position that the record fails to make out any trial-worthy question of material fact, “it is the burden of the nonmoving party to proffer facts sufficient to rebut the movant's assertions.” Nansamba v. N. Shore Med. Ctr., Inc., 727 F.3d 33, 40 (1st Cir. 2013) (citation omitted).

         “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3). In reviewing the record, however, the Court “must take the evidence in the light most flattering to the party opposing summary judgment, indulging all reasonable inferences in that party's favor.” Cochran, 328 F.3d at 6 (citation omitted). The First Circuit has noted that this standard “is favorable to the nonmoving party, but it does not give him a free pass to trial.” Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011). “The factual conflicts upon which he relies must be both genuine and material, ” Gomez v. Stop & Shop Supermkt. Co., 670 F.3d 395, 397 (1st Cir. 2012), and the Court may discount “conclusory allegations, improbable inferences, and unsupported speculation.” Cochran, 328 F.3d at 6 (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Medina-Munoz, 896 F.2d at 8 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). At summary judgment, however, “the judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Burns v. Johnson, 829 F.3d 1, 8 (1st Cir. 2016) (alteration in original) (quoting Anderson, 477 U.S. at 249). At bottom, summary judgment for the defendant “is appropriate when the evidence is so one-sided that no reasonable person could find in favor of the plaintiff.” Vega-Colon v. Wyeth Pharm., 625 F.3d 22, 25 (1st Cir. 2010) (quoting Kosereis v. Rhode Island, 331 F.3d 207, 211 (1st Cir. 2003)).

         c. Discussion

         i. Relevant Statutes

         Under the Massachusetts Minimum Wage Law, Mass. Gen. Laws ch. 151, §§ 1, 7 (“Minimum Wage Law”), employers may pay employees below minimum wage provided that three conditions are met:

1. the employer informs such employee in writing of the provisions of M.G.L. c. 151, § 7, paragraph three;
2. the employee actually receives tips in an amount which, when added to the service rate, equals or exceeds the ...

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