JEFFREY B. MOULD v. NJG FOOD SERVICE INC., et al.
CIVIL NO. JKB-13-1305
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
August 12, 2014
James K. Bredar, United States District Judge
Jeffrey B. Mould (Plaintiff) brought this suit against NJG Food Service, Inc. (NJG), OC Crabbag, LLC (Crabbag), Nolen J. Graves, and Albert Levy (collectively Defendants) for violations of the Fair Labor Standards Act (FLSA),
For the reasons set forth below, Defendants’ cross-motion for summary judgment (ECF No. 104) and supplemental motion for summary judgment (ECF No. 169) are GRANTED IN
I. FACTUAL BACKGROUND1
Plaintiff Mould worked as a server at the Crab Bag, a restaurant in Ocean City, Maryland from February 13, 2011 until he was suspended on June 23, 2013 and ultimately terminated on June 27, 2013. (ECF No. 104-6, Ex. 3, Mould Depo.2 at 13, 31.) As a server, Plaintiff was paid an hourly wage of $3.63 and an overtime hourly wage of $7.26. (ECF No. 121-6; Mould Depo. at 162.) Defendant Levy is the general manager of the Crab Bag. (ECF No. 120-11, Ex. 8, Levy Depo. at 21.) Defendant Graves, as the owner, sole-shareholder, and president of NJG Food Service, Inc. (which operated under the doing business as designation of the Crab Bag), as well as the sole member of OC Crabbag, LLC, is the sole owner of the Crab Bag restaurant. (ECF No. 104-4, Ex. 1, Corp. Designee Depo.3 at 236.)
At the end of each shift, Plaintiff and other servers at the Crab Bag received a revenue report, which provided servers with recommended contributions to a tip pool as part of their daily revenue report.4 (ECF No. 137-6, ¶¶ 17-19.) Money contributed to the tip pool was then shared with other Crab Bag employees, including cooks, crab steamers, and prep cooks, according to an apportionment formula devised by Defendant Levy. (Levy Depo, 76-78; Corp. Designee Depo at 24.)
On May 1, 2012, Plaintiff filed the present lawsuit alleging violations of the Fair Labor Standards Act of 1928 (FLSA),
On June 7, 2013, while watching a live video feed from the restaurant, Defendant Levy witnessed Plaintiff putting his arm around Taylor Roes, a hostess. (Levy Depo. 104-06.)
After this conversation, Defendant Levy suspended Plaintiff and began asking other employees about Plaintiff‘s behavior. (Levy Depo. at 127.) As part of his investigation, Defendant Levy collected statements from a number of other employees who also noted Plaintiff‘s inappropriate workplace behavior. (ECF Nos. 104-11, -12, -13, -14, -15.) On June 27, 2013, Defendant Levy terminated Mould. (Mould Depo. 13, 31.)
On September 4, 2013, with leave of Court (ECF No. 26), Plaintiff filed an amended complaint, which included a count of retaliation in violation of the FLSA (Count X). (ECF No. 33.)
Additional relevant facts will be addressed later in the opinion.
II. STANDARD FOR SUMMARY JUDGMENT
A party seeking summary judgment must show that there is no genuine dispute as to any material fact and that he is entitled to judgment as a matter of law.
III. ANALYSIS
A. Defendants’ motion to strike inadmissible evidence (ECF No. 136)
Rather than rule on all of Defendants’ objections at the onset, the Court will consider the admissibility of material cited by Plaintiff if and when that material becomes relevant to the Court‘s adjudication of this matter.
The Court will make one exception to this procedure with regard to Plaintiff‘s exhibit 25 (ECF No. 121-4), which contains true and correct copies of photographs [Plaintiff] obtained from Facebook and Instagram. (Mould Aff. ¶ 2.) While Plaintiff provides that these pictures are true and correct copies of photographs that [he] viewed on Facebook and Instagram, such a statement is insufficient to authenticate the photographs as substantially correct representations of the behavior they purport to represent. Further, it does not provide when such behavior
B. Plaintiff and Defendants’ respective motions for summary judgment (ECF Nos. 104, 120, 169)
1. Counts I and IV (FLSA violations--Minimum wage and overtime)
Plaintiff‘s claim in Counts I and IV is that Defendants failed to pay him the minimum wage and the minimum overtime rate for hours worked in excess of forty in any given week required by the FLSA.
Section 203(m) provides that an employer may not take a tip credit with regard to an employee‘s wages unless (1) such employee has been informed by the employer of the provisions of this subsection and (2) all tips received by such employee have been retained by the employee, except that the subsection shall not be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips.
The Court begins by turning to the first requirement, the notice requirement. Here, Defendants assert that there is no dispute of fact that Mould was informed by The Crab Bag that
The information included on Plaintiff‘s paychecks fails to meet the notice requirement of section 203(m). In Dorsey, this Court found that an earnings statement that contained no reference to the federal minimum wage could not alone have informed employees that their tipped wage was subminimum and that a certain percentage of their tips was being applied to meet federal minimum wage requirements. 888 F. Supp. 2d at 682; see also Kilgore v. Outback Steakhouse of Florida, Inc., 160 F.3d 294, 299-300 (6th Cir. 1998) (holding that an employer does satisfy the notice requirement where he informs employees of his intention to use the tip credit against the minimum wage); Martin v. Tango‘s Restaurant, Inc., 969 F.2d 1319, 1322 (1st Cir. 1992) (holding section 203(m) to require at the very least notice to employees of the employer‘s intention to treat tips as satisfying part of the employer‘s minimum wage obligations); Perez v. Prime Steak House Restaurant Corp., 939 F. Supp. 2d 132, 138-39 (D.P.R. 2013) (holding that an employer does not satisfy the notice requirement if he makes no mention of minimum wage, as section 203(m) requires, at a minimum, that the employer
On the basis of the undisputed facts set forth by the parties, the Court therefore concludes that Defendants failed to comply with the notice requirement of section 203(m).
The Court now turns to the issue of whether Defendants also violated section 203(m) by implementing a tip-pooling policy that included employees other than employees who customarily and regularly receive tips.
In defining employees who customarily and regularly receive tips, the Sixth Circuit has explained that if an employee abstain[s] from any direct intercourse with diners, work[s] entirely outside the view of patrons, and solely perform[s] duties traditionally classified as food preparation or kitchen support work, they [cannot] be validly categorized as tipped employees under section 203(m). Myers v. Cooper Cellar Corp., 192 F.2d 546, 550 (6th Cir. 1999) (citing Kilgore v. Outback Steakhouse of Florida, Inc., 160 F.3d 294, 300-302 (6th Cir. 1998)). Similarly, in an opinion letter regarding tip sharing, the Department of Labor explained that:
It is customary for waiters/waitresses to receive gratuities and share them with the busboys/busgirls who assist in serving the patrons.
. . .
The legislative history of the 1974 Amendments to the FLSA discusses tip pooling on page 43 of Senate Report 93-960. It indicates that waiters, bellhops, waitresses, countermen, busboys, and service bartenders are among those who
may participate in a tip pool. On the other hand, an employer will lose the benefit of the exception from the tip-retention requirement if tipped employees are required to share their tips with employees who do not customarily and regularly receive tips, such as janitors, dishwashers, chefs, or laundry room attendants.
1997 WL 998047 (DOL Wage-Hour Op. Letter). But see Lentz v. Spanky‘s Restaurant II, Inc., 491 F. Supp. 2d 663, 670-671 (N.D. Tex. 2007) (As noted in other courts, busboys do not necessarily interact directly with restaurant patrons . . . because a busboy‘s duties normally do not come into play until the patrons have concluded their dining experience. Nor does a busboy normally directly receive tips from customers or directly interact with them; yet, busboys are still considered as employees who customarily and regularly receive tips.)
In the case at bar, cooks, crab steamers, and prep cooks all participated in the tip pooling arrangement.5 (Corp. Designee Depo. at 24.) The Court notes that prior to July 2012, some of the kitchen staff, referred to as counter help, occasionally had contact with customers, in that customers would call ahead to enquire about the availability of certain kinds of crabs—particularly sought after jumbo crabs—and have kitchen staff place their desired crab selection on hold. (Id., Levy Aff. ¶ 15.) Further, sometimes kitchen staff would help out waiters and food runners in getting food to customers. (ECF No. 137-4, Exhibit 2, Clempner Depo. at 81.) In sum, at best, some of the kitchen staff occasionally had limited contact with customers. However, it is also clear that those cooks, crab steamers, and prep cooks who were not on counter help duty abstained from any direct intercourse with diners, worked entirely outside the view of patrons, and solely performed duties traditionally classified as food preparation or kitchen support work, [and therefore] could not be validly categorized as tipped employees under section 203(m). Myers v. Cooper Cellar Corp., 192 F.2d 546, 550 (6th Cir. 1999) (citing
Of course, [e]mployees may share tips with other workers who are not customarily and regularly tipped if they do so free from any coercion whatever and outside any formalized arrangement or as a condition of employment. Roussell v. Brinker International, Inc. No. H-05-3733, 2008 WL 2714079 at *17 (S.D. Tex. July 9, 2008) (quoting DOL Field Operations Handbook § 30d04(c)). However, it is an undisputed fact that Defendants provided servers with recommended contributions to the tip pool as part of their daily revenue report.6 (Levy Affidavit ¶¶ 17-19). Further, once money had been contributed, Defendant Levy would then decide how to apportion out the money in the tip pool. (Levy Depo. at 76-78.) On this basis, the Court concludes that the tip pooling arrangement was not outside any formalized arrangement and therefore is not exempt from compliance with the FLSA‘s requirements. Accordingly, the Court grants Plaintiff‘s motion for summary judgment as to the issue of liability with regard to Counts I and IV and denies Defendants’ motion for summary judgment as to the same.
The Court now turns to the issue of whether Defendants’ violations of the FLSA—both with regard to the notice requirement and the tip-pooling arrangement—were willful. Indeed, the statute of limitations under the FLSA is normally two years.
In order to find Defendants’ conduct willful, the Court must find that they either knew or showed reckless disregard for the matter of whether [their] conduct was prohibited by the
In an effort to elucidate the meaning of this standard, the Supreme Court explained that it did not want the issue of willfulness to turn on whether the employer sought legal advice concerning its pay practices. McLaughlin, 486 U.S. at 134. As a result, an employer‘s violation of the FLSA is not willful if it is the result of a completely good-faith but incorrect assumption that a pay plan complied with the FLSA in all respects. Id. at 135. In sum, if an employer acts unreasonably, but not recklessly, in determining its legal obligation, then it is not acting willfully. Id. at n.13.
The Court begins by addressing Defendants’ violation of the notice requirement. As Plaintiff has presented no evidence that Defendants’ conduct in this regard was knowing, the Court‘s task is to determine whether Defendants acted recklessly in determining their legal obligations or merely unreasonably.
Here, Defendants were aware that they could pay tipped employees less than the federal minimum wage of $7.25, but, allegedly, did not understand that there [were] a number of preconditions for paying tipped employees $3.63/hour. (Levy Aff. ¶ 20 (Prior to this lawsuit, I believed that the minimum wage for tipped employees was $3.63/hour.)) Defendants further allege that they assumed their payroll processor would have advised [them] if there were any legal conditions that [needed to be satisfied] before paying $3.63/ hour to a tipped employee. (Id. at ¶ 22.)
The question of whether Defendants’ failure to determine their legal obligations was unreasonable or reckless is a close one. The Court begins by noting that although Defendants provide that they assumed that their payroll processor would provide them with legal advice
Of course, the Court recognizes that an employer‘s violation of the FLSA is not willful merely because it failed to seek out legal advice. What troubles the Court is that the subsection of the FLSA that allows employers to take a tip credit in determining the wages of tipped employees is the very same provision that requires employers who elect to take such a tip credit to inform employees of the provisions of the subsection.
Although bothered by Defendants’ seemingly cavalier approach to the law, the Court cannot, ultimately, find that Defendants’ conduct was reckless. In availing themselves of the tip credit allowed by the FLSA but failing to determine whether any legal conditions needed to be satisfied prior to taking such a tip credit, Defendants’ conduct was unreasonable but falls short of the recklessness required for the Court to find that their violation of section 203(m) was willful.
The Court now turns to the question of whether Defendants’ tip pooling violation was willful. Contrary to the notice provision violation, Plaintiff has presented evidence that suggests that Defendants might have known that their tip-pooling arrangement violated the mandates of the FLSA. Indeed, Plaintiff has alleged that Defendants informed employees that they were not permitted to question the tip pool or they would be fired. (ECF No. 120-3 at 49.) The evidence in support of this claim consists of statements by employees that they believed they would be fired if they questioned the tip pool.7 (ECF No. 120-5, Ex. 2, Clempner Aff. ¶ 9 (We were told by Rick Nagas not to question the tip pool or we would be fired.); ECF No. 120-7, Ex. 4, Schlette Aff. ¶ 8 ([T]he consensus amongst the staff was that if we did not contribute or we questioned the tip pool we would be fired.; ECF No. 120-8, Ex. 5, Lodowski Aff. ¶ 9 (Rick Nagas told us that we could not question the tip out or we would be fired. Rick said it was a sore spot with Albert Levy and we could not question or complain about having to tip out the kitchen.)).8 Although these statements certainly do not conclusively establish that Defendants knew that their conduct violated the FLSA, they nonetheless raise an issue of material fact in this regard. Therefore, Defendants’ motion for summary judgment as to willfulness is denied with
2. Count II (MWHL violation—minimum wage)
The MWHL, like the FLSA, requires that an employer provide notice to an employee before claiming a tip credit as to the employee‘s wages.
Thus, the Court finds that summary judgment in favor of Plaintiff as to Count II is appropriate. Accordingly, Plaintiff‘s motion for summary judgment as to Count II is granted and Defendants’ motion for summary judgment as to the same is denied.
3. Count III (MWPCL violation—unlawful deductions)
The MWPCL provides that an employee—or former employee—has a private cause of action where an employer has made an unlawful deduction from the employee‘s wages, provided that the deduction is not the result of a bona fide dispute.
Defendants have moved for summary judgment as to Count III on the basis that no reasonable jury could find an absence of a bona fide dispute as to Mould‘s wage claims.9 (ECF No. 169 at 3.) At issue, therefore, is whether Defendants’ failure to pay Plaintiff a full minimum wage was the result of a bona fide dispute.
As the Maryland Court of Appeals has explained, a bona fide dispute exists where there is a legitimate dispute over the validity of the claim. . . . Admiral Mortgage, Inc. v. Cooper, 745 A.2d 1026, 1031 (2000). Here, the Court finds that there can be no legitimate dispute that Defendants failed to satisfy the notice requirement of section 203(m) of the FLSA and section 3-419(a) of the MWHL. Indeed, as this Court has explained above, Defendants failed to provide Plaintiff with any meaningful notice that they were using his tip income to satisfy their federal minimum wage obligations. As a result, there can be no legitimate dispute that Defendants were not entitled to take a tip credit and that Plaintiff was owed the full
4. Liability of Defendant Nolen Graves
Defendant Nolen Graves argues that he is entitled to summary judgment as to Counts I, II, and IV because he is not an employer covered by the FLSA or the MWHL‘s proscriptions on failure to pay minimum wage and failure to compensate for overtime.
The FLSA treats as an employer any person acting directly or indirectly in the interest of an employer in relation to an employee.
[a] consistent factor in cases from other circuits has been operational control over the individuals claiming to have been employees. The Second Circuit has noted the relevant factors to consider include whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records. Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999). That court also observed that none of the four factors is dispositive and that a court should consider the totality of circumstances. Id. However, the Herman opinion further noted that it is not
necessary to employer status to monitor employees continuously. Instead, [c]ontrol may be restricted, or exercised only occasionally. Id.
Speert v. Proficio Mortgage Ventures, LLC, Civ No. JKB-10-718, 2011 WL 2417133 at *3 (D. Md. June 11, 2011); see also Roman v. Guapos III, Inc., 970 F. Supp. 2d 407, 413 (D. Md. 2013). This economic reality test also determines whether a person is an employer pursuant to the MWHL. Newell v. Runnels, 967 A.2d 729, 770 (Md. 2009).
Here, it is an undisputed fact that Defendant Graves is the owner, sole-shareholder, and president of NJG Food Service, Inc., as well as the sole member of OC Crabbag, LLC. (Corp. Designee Depo. at 236.) Further, Defendant Graves has some involvement in the operation of the restaurant. On a weekly basis, he peruses the restaurant‘s finances and also monitors the restaurant through a direct video feed that he watches from his home or office computer. (Id. at 236, 244-45.) In addition, Defendant Graves and Defendant Levy discuss all kinds of things pertaining to the restaurant, down to the chicken recipe, on a daily basis. (Levy Depo. at 149-150). Finally, Defendant Graves hired Defendant Levy. (Corp. Designee Depo. at 236.)
However, when asked whether Graves was involved in hiring decisions at the Crab Bag, Richard Nagas, the head waiter, responded: Not really. Nolen was more of a . . . customer . . . . I never really saw Nolen really involved in the restaurant business . . . . I never went to him about restaurant decisions about anything. It was always Albert [Levy]. [Nolen Graves] was more the guy on the side. . . . (Nagas Depo. at 54.) Further, as Plaintiff has conceded, Graves neither hired nor fired him. (Mould Depo. at 380.)
Nonetheless, before sending an email to Plaintiff informing him that he was terminated, Defendant Levy forwarded the email to Defendant Graves with the subject line I am sending this to Jeff. (ECF No. 120-38.) Mr. Levy‘s email to Mr. Graves was sent at 2:28 PM on June 27, 2013. At 3:32 PM that same day, Mr. Levy sent Plaintiff an email informing him of his
Q. Before you terminated Mr. Mould, did you talk about it with Mr. Graves?
A. Talk about what?
Q. Terminating Mr. Mould.
A. Sir, the only conversation was, was that Jeff [Mould] is going to be coming in to talk to me. That‘s the conversation.
Q. You talked to Mr. Graves about that.
A. I talked to—I mean, I talk to him every day. I talk to him about all kinds of things.
(Levy Depo. at 150.)
In sum, the Court finds that there is an issue of material fact as to the exact nature of Defendant Graves‘s status at the Crab Bag. In particular, based on the email communication between Mr. Levy and Mr. Graves regarding Plaintiff‘s termination notice, the Court finds that it can draw a reasonable inference that Defendant Graves was involved in the decision to terminate Plaintiff.10 Accordingly, Defendants’ motion for summary judgment regarding the issue of Defendant Graves‘s personal liability as an employer under the FLSA and MWHL is denied.
5. Count VII (IRC claim)
In Count VII Plaintiff alleges that Defendants willfully filed a fraudulent W-2 form with regard to Plaintiff‘s 2012 income, in violation of
The Internal Revenue Code provides that:
If any person willfully files a fraudulent information return with respect to payments purported to be made to any other person, such other person may bring a civil action for damages against the person so filing such return.
As other courts have noted [o]ur task in interpreting the meaning of § 7434 begins where all such inquiries must begin: with the language of the statute itself. Katzman v. Essex Waterfront Owners, LLC, 660 F.3d 565, 568 (2d Cir. 2011) (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989)). Further, [i]n this case it is also where the inquiry should end, for where, as here, the statute‘s language is plain, the sole function of the courts is to enforce it according to its terms. Id. (internal quotation marks omitted).
In the tax context, fraud requires intentional wrongdoing and an intent to deceive. Vandehee v. Vechio, 541 F. App‘x. 577 (6th Cir. 2013) (unpublished); Zell v. C.I.R., 763 F.2d 1139, 1143-44 (10th Cir. 1985). See also Maciel v. Comm‘r, 489 F.3d 1018, 1026 (9th Cir. 2007); Granado v. Comm‘r, 792 F.2d 81, 93 (7th Cir. 1986) (per curiam). Here, the undisputed facts establish that any mistake in Plaintiff‘s 2012 W-2 form was not the result of any such intentional wrongdoing or intent to deceive.
Starting on December 9, 2011, Defendants put in place a new policy for calculating employees’ tipped income. (ECF No. 120-21.) Under this policy, Defendants approximated employees’ income from tips as 10% of cash sales (i.e. checks that customers paid with cash) and 100% of tips paid by credit card. (Id.) This policy was clearly explained to all employees, including Plaintiff. (Mould Depo. at 99.)
Plaintiff asserts that this policy overstated his income for two reasons. First, the policy did not take into account amounts of money that were contributed to the tip pool. (Mould Aff. ¶ 21.) Second, when a customer left no tip on a credit card sale, the sale was treated as a cash sale. (Id.) As a result, Defendants automatically reported 10% of the sale as tip income, even where employees did not actually receive a tip. (Id.) While Plaintiff‘s statements support the
In an effort to show that the information return was in fact fraudulent, Plaintiff relies on two evidentiary sources. First, he relies on the expert testimony of Larry Epstein, who stated: I‘m not making any type of accusation. But if you overstate the W2 of one person, you could be understating a W2 of another person, or you could be putting it into somebody else‘s W2 earnings that somebody is taking. And, again, I‘m not saying that occurred here. (Id.; ECF No. 120-18, Ex. 15, Epstein Dep. at 117 (emphasis added).) Second, he relies on the fact that the United States has a tax lien against Defendant Levy‘s property for $266,375.17 in unpaid taxes. (Id.; ECF No. 120-40.) On this basis, Plaintiff argues that Defendant Levy has a very good reason to over-report employee wages. (ECF No. 120-3.) Ultimately, however, these facts and the inferences to be drawn therefrom, even when viewed in the light most favorable to Plaintiff, are insufficient to create an issue of material fact as to whether Defendants filed a fraudulent W-2 form.
In contrast, Defendants have produced evidence that the December 9, 2011 policy was implemented to ensure that tip income was properly reported to the IRS. (Levy Dep. at 58.) In fact, Defendants’ practice here resembles the aggregate estimation method that the IRS sometimes uses to estimate restaurant employees’ tip income when it conducts audits. See United States v. Fior D‘Italia, Inc., 536 U.S. 238 (2002). Prior to implementing this policy, Defendants had experimented with other policies that depended on waiters accurately reporting tips. (Levy Dep. at 60-61.) However, Defendants found that under these other policies employees failed to report their tips accurately. (Id. 61:19-22.) These facts establish that
Ultimately, therefore, the Court finds that Defendants have met their burden of showing that there is no genuine dispute of material fact and that they are entitled to judgment as a matter of law with regard to Count VII. Accordingly, Defendants’ motion for summary judgment as to Count VII is granted.
6. Count X (FLSA retaliation claim)
In Count X, Plaintiff claims that his indefinite suspension, on June 23, 2013, and subsequent termination, on June 27, 2013, violated the anti-retaliation provision of the FLSA.
(1) he engaged in an activity protected by the FLSA; (2) he suffered adverse action by the employer subsequent to . . . such protected activity; and (3) a causal connection exists between the employee‘s activity and the employer‘s adverse action.
Darveau, 515 F.3d at 340. With regard to the third element, [n]ormally, very little evidence of a causal connection is required to establish a prima facie case. Jackson v. Mayor and City Council of Baltimore City, No. JFM-08-3103, 2009 WL 2060073 at *7 (D. Md. July 14, 2009) (quoting Tinsley v. First Union Nat‘l Bank, 155 F.3d 435, 443 (4th Cir. 1998), overruled on
Here, the Court finds that Plaintiff has successfully established a prima facie case. Indeed, on May 1, 2013, Plaintiff filed a complaint against Defendants for violating the FLSA. (ECF No. 1). On June 23, 2013, Plaintiff was suspended (see Mould Depo. at 303-04; Levy Dep. at 214-15), and, four days later, on June 27, Plaintiff was terminated (see ECF No. 120-29). Given the temporal proximity between the filing of his complaint and his termination, Plaintiff has established a prima facie case of retaliation.
Under the McDonnell Douglas burden-shifting framework, once a plaintiff has stated a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for the adverse action. Anderson v. G.D.C., Inc., 281 F.3d 452, 458 (4th Cir. 2002). Here, Defendants have explained that Plaintiff was fired for sexually harassing Taylor Roes (formerly Taylor Lynch), who was a fellow employee. (Levy Aff. ¶¶ 16-17.) Specifically, Defendant Levy has explained that on June 7, 2013, he witnessed an interaction at the restaurant‘s hostess station between Plaintiff and Ms. Roes that led him to believe something not right might have been afoot. (Levy Depo. at 104-106.) Later, Mr. Levy talked to Ms.
Under the McDonnell Douglas burden-shifting framework, the burden now shifts back to Plaintiff to show that the proffered reason was not the employer‘s true reason but, rather, was merely a pretext for unlawful retaliation. Anderson, 281 F.3d at 458. For example, a plaintiff might establish pretext by showing that similarly situated employees were treated differently or that he was singled out. See Kearns, The Fair Labor Standards Act 15-43 (collecting cases).
Here, Plaintiff argues that he came under increased scrutiny when he filed his lawsuit and that he was singled-out in a workplace [that] was a sexually loose environment where management participated in the unprofessional environment that Levy decries. (ECF No. 120-3 at 31.) This argument partly misses the mark. In particular, when Plaintiff alleges (1) that the Crab Bag was a sexually loose environment in which Defendants, including Mrre. Levy himself, participated in sexual jokes and other banter with the employees and (2) that the Crab Bag had no sexual harassment policy, his arguments are inapposite to the issue of pretext. (Id.) Indeed, Defendants do not say they terminated Plaintiff for his sexual jokes or banter. Rather, the
Plaintiff comes closer to the mark when he argues that on at least two occasions, female servers complained to management about conduct by male employees . . . but that no disciplinary action was taken by management. (Id. at 33; Mould Aff. ¶ 15; ECF No. 120-6, Ex. 3, Lodowski Aff. ¶¶ 5-6; ECF No. 120-7, Ex. 4, Schlette Aff. ¶ 6; ECF No. 120-8, Ex. 5, Yanek Aff. ¶ 8.) However, Plaintiff has failed to present admissible evidence that supports his claim. Indeed, in their affidavits, Ms. Schlette and Ms. Yanek do not mention that management was aware of any employee misconduct. (Schlette Aff.; Yanek Aff.) Further, in her affidavit, Ms. Lodowski provides that Alyssa Fowler complained to management about the behavior of Charles Sheubrooks, but such a statement is inadmissible hearsay. (Lodowski Aff. ¶ 6.) Similarly, Plaintiff, in his affidavit, provides that Amy Velli complained to Defendant Levy that Brian Chetelat, who was the Crab Bag‘s general manager at the time, made sexual advances toward her and that no action was taken. (Mould Aff. ¶ 15.) Again, however, this constitutes inadmissible hearsay.
Plaintiff has also testified that he knows that Alyssa Fowler, a former server, complained to Brian Chetelat about Charles Sheubrooks . . . grabbing her buttucks [sic] and that nothing was done. (Id.) Plaintiff goes on to recount that when Alyssa tried to come back to the restaurant to serve the next summer Richard Nagas and John Koehler told [him] that they did not want to hire her back because of the incident with [Sheubrooks] and because [Sheubrooks‘s]
In contrast, Defendants have presented evidence that they did, in fact, discipline employees who sexually harassed co-workers. A month before Plaintiff filed this lawsuit, Defendant Levy terminated an employee, Tom Belyea, when he learned that Mr. Belyea had sexually harassed another employee. (ECF No. 138.) In addition, after this lawsuit was filed, but before Plaintiff was suspended, Defendant Levy terminated another employee, Kyle Kesterson, after receiving sexual harassment complaints from a server. (ECF No. 138-1.)
Plaintiff next argues that [t]he statements of the witnesses that Levy solicited on the day after Mould was suspended[, as well as the statement by Ms. Roes,] are [untruthful and] colored by the fact that most of them are individuals who received something from The Crab Bag around the time of the statements. (ECF No. 120-3 at 12-13; Mould Depo. 286-303.) However, again, Plaintiff fails to offer admissible proof that would tend to show that Defendants knew that the statements were false. In support of this theory, Plaintiff has produced a document that is purportedly a receipt for a payroll advance of $500 to Mr. Sheubrooks, dated June 11, 2013. (ECF No. 123-1.) However, this document is not authenticated, and, even if it were, Plaintiff has
Finally, Plaintiff suggests that Defendants’ retaliatory intent is further laid bare by the fact that the general manager, John Koehler, admitted to [Peter] Clempner[, a server at the Crab Bag,] that [Clempner] was denied the promotion to head server because he was assisting Mould in the lawsuit. (ECF No. 120-3 at 24.) Specifically, Clempner testified that John [Koehler] told me that they[, i.e. Graves and Levy,] didn‘t want to promote me because Jeff and I were good friends and they thought I was part of the lawsuit as well. (Clempner Aff. ¶ 6.) However, this evidence does not show that Defendants retaliated against Plaintiff.
Therefore, the Court finds that Plaintiff has failed to raise an issue of material fact to show that the proffered reason was not the employer‘s true reason but, rather, was merely a pretext for unlawful retaliation. Anderson, 281 F.3d at 458. Accordingly, Defendants’ motion for summary judgment as to Count X is granted.
IV. CONCLUSION
For the above reasons, Defendants’ cross-motion for summary judgment (ECF No. 104) and supplemental motion for summary judgment (ECF No. 169) are GRANTED IN PART and DENIED IN PART; Plaintiff‘s motion for partial summary judgment (ECF No. 120) is GRANTED IN PART and DENIED IN PART; and Defendants’ motion to strike (ECF No. 136) is GRANTED IN PART AND DENIED IN PART.
- Counts I and IV: Plaintiff‘s motion for summary judgment as to the issue of liability is GRANTED. Defendants’ motion for summary judgment as to the same is DENIED. Further, Defendants’ motion for summary judgment as to the issue of willfulness is DENIED. Therefore, the issue of whether a two-year or three-year statute of limitations will apply to Counts I and IV is one that will have to be decided at trial.
- Count II: Plaintiff‘s motion for summary judgment as to the issue of liability is GRANTED. Defendants’ motion for summary judgment as to the same is DENIED.
- Count III: Defendants’ motion for summary judgment is DENIED. Count III will have to be adjudicated at trial.
- Count VII: Defendants’ motion for summary judgment is GRANTED. Judgment shall be entered for the Defendants.
- Count X: Defendants’ motion for summary judgment is GRANTED. Judgment shall be entered for the Defendants.
Finally, Defendants’ motion for summary judgment as to the personal liability of Defendant Graves with regard to Counts I, II, and IV is DENIED. The issue is one that will have to be decided at trial. A separate order follows.
Dated this 12th day of August, 2014.
BY THE COURT:
/s/
James K. Bredar
United States District Judge