United States District Court, D. Massachusetts
TRACEY LAZO, JAMEN HARPER, MUSTAPHA JARRAF, NY'COLE YOUNG THOMAS, and all others similarly situated, Plaintiffs,
SODEXO, INC., Defendant.
OPINION AND ORDER
A. O'TOOLE, JR. UNITED STATES DISTRICT JUDGE.
Lazo, Jamen Harper, and Mustapha Jarraf bring suit against
Sodexo, Inc., for alleged violations of the Massachusetts
Tips Act, Mass. Gen. Laws ch. 149, § 152A. The
plaintiffs claim that Sodexo unlawfully retained money
collected from patrons as service charges, rather than
remitting the monies to wait staff and service employees as
the statute requires. Sodexo has moved for summary judgment.
following facts are undisputed unless otherwise noted:
Sodexo's Operations at One Lincoln Street
provides a number of different food service options at One
Lincoln Street, Boston, for the two companies located in the
building, State Street Bank and K&L Gates LLP. It
operates a cafeteria for State Street and K&L Gates
employees, which offers traditional cafeteria-style food
service and delivery of items, such as boxed lunches, to
meetings throughout the building. It also operates an
Executive Dining Room (“EDR”). Like the
cafeteria, the EDR only offers services to State Street and
K&L Gates, and not the general public. Services offered
by the EDR include on-site dining, on-site catering (with or
without wait staff), drop-off catering, unmanned buffets,
service ware, linen rental, stationary displays, and
provision of items such as balloons and flowers. Drop-off
catering and unmanned buffets typically do not involve the
direct service of food to a customer as a guest; rather, food
is dropped off before guests arrive or guests serve
June 2008, any order placed through the EDR has been subject
to an 18% “administrative charge, ” which is
retained by Sodexo. (Aff. of Douglas J. Hoffman in Supp.
of Sodexo's Mot. for Summ. J. (“Hoffman
Aff.”), Ex. A. Decl. of Roger Dubois (“Dubois
Decl.”) ¶ 13 (dkt. no. 100-1).) The charge applies
to any service provided through the EDR, whether or not any
wait staff employees are involved in the transaction. (Dubois
Decl. ¶ 14-16.) The administrative charge appears on an
invoice transmitted to the individual who books an order.
With respect to State Street, the bills for EDR services are
sent to the State Street accounts payable department for
payment and are not presented to any person dining in the EDR
or attending the event. State Street and K&L employees
involved in booking have asked members of Sodexo management
about the administrative charge many times, and Sodexo
management always explained the purpose of the administrative
charge, that it is retained by Sodexo, and that it is not a
tip or gratuity distributed to wait staff. Beginning in
September 2015, additional language was added to all EDR
invoices: “The administrative charge does not represent
a tip or service charge for wait staff employees or
bartenders.” (Hoffman Aff., Ex. E Sodexo's Am.
Resps. & Objects. to Lazo's First Interrogs.
(“Sodexo's Interrogs. Resps.”) 5-6 (dkt. no.
least two Sodexo employees, the plaintiff, Mustapha Jarraf,
and a co-worker, Constance Passanisi, aver that they were
told by customers that they wanted to leave a tip, but that
it had already been paid as part of the bill. Additionally,
Passanisi avers that Sodexo management told customers that
they did not need to tip and would not permit wait staff or
bartenders to put out a tip jar.
Operations at Plimoth Plantation
also provides services at Plimoth Plantation in Plymouth,
Massachusetts. Sodexo offers a variety of different food
service options, including a quick-service cafeteria and a
series of themed dining opportunities for guests, such as a
Thanksgiving Day Buffet and Harvest Dinner with the Pilgrims.
Sodexo provides catering for private events such as weddings,
showers, and meetings.
2009 through October 2015, invoices for catered events
applied a 20% fee described as a “Staffing
Charge” or “Support Charge.” The invoice
stated that the fee “is not a gratuity, but covers
labor expenses for staffing your event and may exceed our
actual labor cost. Additional line item labor charges may
still apply.” (Hoffman Aff., Ex. F Decl. of Elizabeth
Derosier (“Derosier Decl.”) ¶ 10 (dkt. no.
100-6).) In October 2015, the language was revised to state:
“[A]ll food and beverage is subject to a 20%
administrative fee and applicable state and local tax. The
administrative fee does not represent a tip or service charge
paid directly to wait staff, employees or bartenders; but is
a charge to cover our operational costs and no additional
gratuity is required.” (Id. ¶ 10 n.1.)
of Sodexo management have sometimes been asked questions by
Plimoth Plantation customers regarding the charge. Typically
the questions have come from the customer booking the event.
When asked, Sodexo managers confirmed to the customer that
the charges are not tips or gratuities distributed to wait
avers that he was told by a customer that the customer wished
to leave a tip but that the tip was already included with the