Dudley SMITH-MENDOZA et al.,  on Behalf of Themselves and Other Similarly Situated
LAZ PARKING LIMITED, LLC et al.
MEMORANDUM OF DECISION AND ORDER ON PARTIESâ CROSS
MOTIONS FOR SUMMARY JUDGMENT
Mitchell H. Kaplan, Justice of the Superior Court
Plaintiffs Dudley Smith-Mendoza and Latif Evans were employed
as parking valets by Ultimate Parking, LLC, a firm that
manages parking services for its customers. They bring this
action on behalf of themselves and other similarly situated
valets against their former employer as well as LAZ Parking
Limited, LLC, LAZ KARP Associates, LLC, Alan Lazowski,
Michael Kuziak, and Jeffrey Karp (collectively,
"LAZ"). They assert that LAZ violated the
Massachusetts Tips Law, G.L.c. 149, Â§ 152A, and the
Massachusetts Minimum Wage Law, G.L.c. 151, Â§ Â§ 1, 7, by
permitting valets, such as themselves, to share tips with
certain employees known as "front men" or
"account supervisors," who they allege had
management responsibilities. The case is before the court on
the partiesâ cross motions for summary judgment on both the
Tips Law claim (Count I) and Minimum Wage Law claim (Count
II). LAZ has also moved to strike affidavits submitted by
each of the plaintiffs in support of his motion for summary
judgment and in opposition to LAZâs motion for summary
judgment. For the reasons that follow, LAZâs motions to
strike and for summary judgment are both ALLOWED in
part and DENIED in part. Plaintiffsâ motion for
summary judgment is DENIED .
provides valet parking services to a variety of customers,
including: restaurants, hotels, social clubs, and residences.
At certain restaurant locations, it is typical for one of the
valets on a shift to be designated to act as a "front
man" or "account supervisor." It is
undisputed that this valet stands at the valet podium, passes
tickets to customers, collects money and keys from customers,
and fills out a log of the tickets provided. Whether they
perform any other services, and, if so, whether any of those
services are managerial are the principal issues raised by
the pending motions.
money collected sometimes includes customersâ tips, which the
front man divides among the valet staff, sometimes including
himself. Which valet is designated the front man can vary
from shift to shift. A valet may be designated as a regular
valet on one day and be designated a front man on another
day. Evans was first employed by LAZ in May
2013 and apparently worked with LAZ until sometime in
2017. He occasionally worked as a front man.
Smith-Mendoza only worked for LAZ between July and October
2015, but was also occasionally a front man.
undisputed that front men have no authority to hire, fire, or
discipline other valets and have no authority to send a valet
home early, call a valet into work, or set the shift schedule
for a valet. It is also undisputed that front men, at least
occasionally and at some restaurants, were paid only a
service rate by LAZ, earned tips, and split tips with valets.
There is also evidence in the record that LAZ was aware that
front men, at least sometimes, participated in tip pools, and
that LAZ permitted such participation to occur.
took the depositions of both Smith-Mendoza and Evans. As
relevant to the motions now before the court, Smith-Mendoza
testified that: "[t]he whole purpose of the [front man]
job is to get the customer to their car[, ] [t]hatâs it"
(Smith-Mendoza Dep. at 25:21-23); the front man "would
send us to go get the cars" (id. at
26:25-27:1); the front man "was our leader"
(id. at 27:4); and front men "would run the
facility where they are assigned to." Id. at
37:13-14. He also testified that he would first report
accidents to the front man and that front men provided
training to new valets through "shadowing" and
showing valets where to park the cars. He testified that he
occasionally served as a front man.
deposition, Evans described the duties of front men in a far
more limited manner: "[T]hatâs the dude thatâs going to
stand there with the tickets in his hand, take the money from
the customer, rip the ticket, give them the ticket and fill
out the rest of the ticket, and they give the valet the other
half of the ticket so he can go park the car." Evans
Dep. at 35:11-16. When asked if the front man had any other
responsibilities, Evans replied "No. Thatâs it."
Id. at 35:17-20. Although Evans later added that a
front man kept track of the customersâ tickets in a log and
that he held money collected as tips, which he subsequently
distributed among the valets, Evans was quite adamant in
explaining that the front man was not his "boss,"
and did not perform any training. He testified that accidents
were reported to the manager on duty. Like Smith-Mendoza, he
occasionally served as a front man.
response to plaintiffsâ request for production of documents,
LAZ produced a job description for the front man position
that describes a front man as the individual who
"oversees a shift while greeting and creating a
welcoming atmosphere for our customers and clients." It
states that front men have the following principal job
duties, among others: "[o]versight of staff during
assigned shifts ensuring compliance with rules of conduct and
policies and procedures ...[; ] [a]ssist the Assistant
Manager to implement and complete other projects, programs,
and initiatives that may arise from the operation of the
location[; ] [r]esponsible for financial reporting on a daily
basis." LAZ submitted deposition testimony and
affidavits in support of its motion for summary judgment in
which the affiant/deponent explained that this job
description was mistakenly created in response to the
document request and does not accurately reflect the duties a
front man performs. Specifically, an HR administrator averred
that she had never heard of the front man position, found a
generic job description for a "Team Lead," and
replaced the words "Team Lead" with "Front
Man," assuming that the front man position referred to
an individual who oversees all restaurants and all restaurant
valets. Why she created this document to respond to the
document request is unclear.
identical affidavits from each of the plaintiffs were
included in their summary judgment materials. Notwithstanding
their markedly different deposition testimony describing the
functions of a front man, in each affidavit the plaintiff
attests that the front man was the "leader running the
facility where he was assigned," that they
"considered the Front Man [their] boss and thought of
the position as a promotion, were [they] to attain it,"
and that the job description produced by LAZ is
"consistent with [their] understanding of the job duties
of a Front Man." Smith-Mendoza and Evans Affs. at Â¶Â¶ 6,
9, 10. The affidavits go on to say:
The Front Manâs responsibilities included running the site,
keeping control of the money, tickets and book of
transactions. The Front Man was the point person for LAZ.
They would tell valets which cars to retrieve and park,
receive accident reports, train new employees, and would turn
over an accounting of the activities of the day to the
superior LAZ employee. The Front Man would approve when
valets could take breaks.
Id. at Â¶ 4.
Motion to Strike
may submit an affidavit in connection with a summary judgment
motion which clarifies or expands upon prior deposition
testimony. See Gillen v. Fallon Ambulance Serv.,
Inc., 283 F.3d 11, 26 (1st Cir. 2002); Physicianâs
Healthsource, Inc. v. Vertex Pharm., Inc., 247 F.Supp.3d
138, 142 (D.Mass. 2017). However, "a party cannot create
a disputed issue of fact by the expedient of contradicting by
affidavit statements previously made under oath at a
deposition," OâBrien v. Analog Devices, Inc.,
34 Mass.App.Ct. 905, 906 (1993), unless there is a
"satisfactory explanation" for the contradiction.
Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d
1, 4-5 (1st Cir. 1994); Physicianâs Healthsource, Inc., 247
F.Supp.3d at 142. LAZ has moved to strike plaintiffsâ
affidavits on the grounds that they contradict their
deposition testimony. While this is certainly true with
respect to Evans, a comparison of the Smith-Mendoza affidavit
with his deposition testimony produces a more ambivalent
deposition, Evans made clear that the only duties
the front man performed were passing tickets to customers,
collecting money from customers, and giving a portion of the
ticket to the valet in order for the valet to park the car.
The front man kept some manner of log of the tickets and
money and sometimes distributed tips. Evans expressly
testified that the front man was not his boss, performed no
training, and did not receive accident reports. This
testimony is clearly inconsistent with Evanâs statements in
his affidavit that: the front man was his "boss"
and the "leader running the facility where he was
assigned"; and the duties of the front man included
receiving accident reports, training new employees, and
approving valet breaks. The conclusory statement that the
written job description for the position was consistent with
his memory of what a front man does simply cannot be
reconciled with his deposition. The ...