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Smith-Mendoza v. LAZ Parking Limited, LLC

Superior Court of Massachusetts, Suffolk

February 22, 2019

Dudley SMITH-MENDOZA et al., [1] on Behalf of Themselves and Other Similarly Situated
v.
LAZ PARKING LIMITED, LLC et al.[2]

          MEMORANDUM OF DECISION AND ORDER ON PARTIES’ 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, § 152A, and the Massachusetts Minimum Wage Law, G.L.c. 151, § § 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 parties’ 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 LAZ’s motion for summary judgment. For the reasons that follow, LAZ’s motions to strike and for summary judgment are both ALLOWED in part and DENIED in part. Plaintiffs’ motion for summary judgment is DENIED .

          BACKGROUND

          LAZ 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."[3] 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.[4] 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.

          The money collected sometimes includes customers’ 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.[5] Evans was first employed by LAZ in May 2013 and apparently worked with LAZ until sometime in 2017.[6] 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.

          It is 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.[7]

          LAZ 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]hat’s 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.

          In his deposition, Evans described the duties of front men in a far more limited manner: "[T]hat’s the dude that’s 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. That’s it." Id. at 35:17-20. Although Evans later added that a front man kept track of the customers’ 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.

          In response to plaintiffs’ 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.

          Nearly 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 ¶¶ 6, 9, 10. The affidavits go on to say:

The Front Man’s 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 ¶ 4.

          DISCUSSION

          A. Motion to Strike

         A party 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); Physician’s 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," O’Brien 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); Physician’s Healthsource, Inc., 247 F.Supp.3d at 142. LAZ has moved to strike plaintiffs’ 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 conclusion.

          In his 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 Evan’s 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 ...


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