United States District Court, D. Massachusetts
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.
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS UNITED STATES DISTRICT JUDGE
putative class action, Plaintiffs 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.
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].
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].
MOTION FOR SUMMARY JUDGMENT
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.
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.
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].
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.
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].
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).
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.
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
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
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 ...