Opinion
HHDCV156062506S
11-25-2016
Shaneque Stevens v. Vito's by the Water, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
The matter presently before the court arises out of a dispute between the plaintiff, Shaneque Stevens, and the defendant, Vito's by the Water, LLC. The plaintiff alleges that she was a former employee of the defendant, working as a bartender and server at the defendant's establishment, and that the defendant failed to pay her the full minimum fair wage in accordance with the Connecticut Minimum Wage Act (CMWA), General Statutes § 31-58 et seq., and the applicable Regulations of Connecticut State Agencies, § 31-62-E1 et seq. Presently before, the court is the plaintiff's motion for summary judgment as to liability, damages, liquidated damages, and attorneys fees. For the reasons set forth herein, the plaintiff's motion for summary judgment is denied in its entirety.
I. FACTS AND PROCEDURAL HISTORY
The plaintiff commenced this action by service of process on September 11, 2015. As presented by her single-count complaint, dated September 3, 2015, the plaintiff worked for the defendant " during the last three years" as a bartender and server. These positions, according to the plaintiff, are deemed to be " service employee" positions under § 31-62-E2(c) of the Regulations of Connecticut State Agencies. Moreover, while working for the defendant, the plaintiff alleges that she performed both " service" and " nonservice" duties. Her " nonservice" duties allegedly included setting up the restaurant before opening service and " side work" tasks prior to and after her scheduled shifts.
According to the plaintiff, General Statutes § 31-60(b) permits employers in the hotel and restaurant industries to take a " tip credit" when paying their employees the full minimum fair wage, but that such employers, in accordance with the applicable regulations, are required to satisfy certain preconditions prior to taking such a " tip credit." In other words, employers in the hotel and restaurant industries are only able to take a " tip credit" when they satisfy certain regulatory prerequisites and the failure to satisfy such prerequisites deprives employers of the " tip credit" benefits.
The plaintiff claims that the defendant paid her at the " tip credit" rate, as outlined by § 31-60(b), while she worked for the defendant, notwithstanding the fact that the defendant failed to satisfy certain regulatory prerequisites. Accordingly, the plaintiff claims that the defendant improperly took the " tip credit" and, therefore, failed to pay her the full minimum fair wage in accordance with the CMWA.
The plaintiff filed her motion for summary judgment and an accompanying memorandum of law on July 11, 2016. In support of her motion for summary judgment, the plaintiff attached various documents, including uncertified excerpts from the deposition transcript of Robert J. Maffucci. The defendant timely filed its objection and provided an accompanying memorandum of law on July 29, 2016. The defendant attached a one-page excerpt from Maffucci's deposition and included one unreported decision from the Superior Court in support of its opposition. This court heard oral argument on the matter during the August 1, 2016 short calendar. Additional facts will be included as necessary.
Although unclear, Robert J. Maffucci appears to be the owner and/or manager of the defendant-restaurant. " While [a party's] deposition testimony is not conclusive as a judicial admission; General Statutes § 52-200; it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact." Collum v. Chapin, 40 Conn.App. 449, 450 n.2, 671 A.2d 1329 (1996). Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). Because the defendant has not objected to the uncertified deposition transcript excerpts, this court may consider such excerpts in ruling on the plaintiff's motion for summary judgment.
II. DISCUSSION
The standard governing the court's review of a motion for summary judgment is well settled. " Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015); see also Practice Book § 17-49 (summary judgment standard).
Generally speaking, the plaintiff argues that she is entitled to summary judgment because restaurants, like the defendant, may only take a " tip credit" in Connecticut when restaurants satisfy certain regulatory prerequisites. Because the defendant allegedly failed to satisfy such prerequisites, it was not entitled to pay her at the " tip credit" rate. More specifically, however, the plaintiff argues that she has made out a prima facie case of a violation of the CMWA and, under such circumstances, the defendant bears the burden of proving that it was entitled to take the " tip credit." See, e.g., Shell Oil Co. v. Ricciuti, 147 Conn. 277, 283, 160 A.2d 257 (1960). The plaintiff, citing Palmer v. Friendly Ice Cream Corp., Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X07-CV-04-4025113-S (May 25, 2010, Berger, J.) (49 Conn.L.Rptr. 882, ), claims that " [i]n Connecticut, a server makes his prima facie case when he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference."
See plaintiff's memorandum of law, p. 12. The plaintiff also argues that the defendant cannot prove that it was entitled to take the " tip credit" because: (1) her work did not relate solely to " service" and is not " incidental to service, " and the defendant failed to segregate her " service work" from " nonservice work"; see Regs., Conn. State Agencies § § 31-62-E2 and 31-62-E4; and (2) the defendant failed to obtain the proper tip statements as required by § 31-62-E3 of the Regulations of Connecticut State Agencies. Moreover, the plaintiff argues that she is entitled to damages because the defendant cannot establish a " good faith" defense. See General Statutes (Sup. 2016) § 31-68(a)(2). Because the court concludes that the plaintiff has not presented sufficient evidence to establish a violation of the CMWA, it does not reach these arguments.
In response, the defendant argues that genuine issues of fact remain as to almost every element of the plaintiff's claims. Additionally, the defendant argues that the plaintiff attempts to impermissibly shift the burden of proof to the defendant under the circumstances of this case. The defendant, relying on prior Superior Court precedent, argues that the plaintiff must not only prove that she, in fact, completed the " side work" in question, but also that it was not " incidental to service."
The defendant also advances the following arguments in opposition to the plaintiff's motion f6r summary judgment: (1) a genuine issue of material fact exists as to whether the " side work" completed by the plaintiff was " incidental to her duties"; (2) the significance of the regulatory tip statements is a question of fact; and (3) the existence of a good faith defense, as permitted by General Statutes (Sup. 2016) § 31-68, is a question of fact that is appropriately left to the trier of fact. The court does not reach these arguments because the defendant's principal claim is dispositive.
General Statutes (Sup. 2016) § 31-58 provides in relevant part that " [a]s used in this part (i) 'Minimum fair wage' in any industry or occupation in this state means a wage . . . effective January 1, 2010, not less than eight dollars and twenty-five cents per hour, and effective January 1, 2014, not less than eight dollars and seventy cents per hour, and effective January 1, 2015, not less than nine dollars and fifteen cents per hour . . ." Notably, General Statutes § 31-60(b) requires the Labor Commissioner to promulgate regulations to carry out the provisions of the CMWA and mandates that such the regulations recognize a " tip credit" for employees working in the hotel and restaurant industries.
General Statutes § 31-60 provides in relevant part:
In accordance with this legislative directive, the Labor Commissioner promulgated certain regulations that are directly implicated by the circumstances of this case. Section 31-62-E2 of the Regulations of Connecticut State Agencies provides in relevant part that " [a]s used in sections 31-62-E2 to 31-62-E15, inclusive . . . (c) 'Service employee' means any employee whose duties relate solely to the serving of food and/or beverages to patrons seated at tables or booths, and to the performance of duties incidental to such service, and who customarily receive gratuities . . . (e) 'Gratuities' means a voluntary monetary contribution received by the employee directly from a guest, patron or customer for service rendered."
Additionally, § 31-62-E3 of the Regulations of Connecticut State Agencies provides in relevant part that " [g]ratuities shall be recognized as constituting a part of the minimum fair wage when all of the following provisions are complied with: (a) The employer shall be engaged in an employment in which gratuities have customarily and usually constituted and have been recognized as part of his remuneration for hiring purposes, and (b) the amount received in gratuities claimed as credit for part of the minimum fair wage shall be recorded on a weekly basis as a separate item in the wage record even though payment is made more frequently, and (c) each employer claiming credit for gratuities as part of the minimum fair wage paid to any employee shall obtain weekly a statement signed by the employee attesting that he has received in gratuities the amount claimed as credit for part of the minimum fair wage . Such statement shall contain the week ending date of the payroll week for such credit is claimed." (Emphasis added.)
Finally, § 31-62-E4 of the Regulations of Connecticut State Agencies provides that " [i]f an employee performs both service and nonservice duties, and the time spent on each is definitely segregated and so recorded, the allowance for gratuities as permitted as part of the minimum fair wage may be applied to the hours worked in the service category. If an employee performs both service and nonservice duties and the time spent on each cannot be definitely segregated and so recorded, on is not definitely segregated and so recorded[, ] no allowances for gratuities may be applied as part of the minimum fair wage ." (Emphasis added.) Although this court is unaware of any governing appellate authority on the issue squarely before the court, the Superior Court has addressed an employee's burden in establishing a violation of the CMWA based on an employer impermissibly taking a " tip credit." For example, in Galbreth v. Briad Restaurant Group, LLC, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X02-CV-04-4000676-S (November 29, 2005, Eveleigh, J.) (40 Conn.L.Rptr. 402, ), the court noted that " [a] class member in this case can only suffer a loss if he or she performed 'nonservice duties' as described in regulations [§ ]31-62-E4. (Emphasis added.) Id., 404, . Justice Eveleigh denied class certification in that case after rejecting the plaintiffs' claims that a violation of the CMWA could be established by proving the existence of " uniformly applied practices" and presenting evidence of each server's time records. Id., 403, . Moreover, Justice Eveleigh commented that " [t]he case will require proof, on all counts, that a given class member had suffered a loss that was caused by the challenged policies of the defendant. The court does not accept the simplistic approach proposed by the plaintiff." Id., 404, .
Judge Berger faced similar circumstances in Palmer v. Friendly Ice Cream Corp., Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X07-CV-04-4025113-S (May 25, 2010, Berger, J.) (49 Conn.L.Rptr. 882, ). There, various waiters and servers moved for summary judgment based on their claims that " the normal burden of proof in these types of cases simply requires employees to show that they performed nonservice duties and that they were not paid the full minimum fair wage. Once those facts are proven . . . the burden shifts to the employer to show that it was entitled to apply the tip credit exception to the minimum wage. They maintain that they are not required to prove minute by minute side work." (Internal quotation marks omitted.) Id., 883, . The court rejected the plaintiffs' approach and, quoting a previous decision from Judge Sferrazza, noted that " the defendant has the right to require the plaintiffs to meet the normal burden of proof as to each member of the proposed class and prove that each particular member performed nonservice duties for a specific time period . The plaintiffs acquire no presumption of violation of the minimum wage law for all servers for all hours of work because it would be convenient and expeditious to do so." (Emphasis added.) Id., quoting Palmer v. Friendly Ice Cream Corp., Superior Court, judicial district of Tolland, Complex Litigation Docket, Docket No. X07-CV-044001612-S, (January 25, 2006, Sferrazza, J.), aff'd, 285 Conn. 462, 940 A.2d 742 (2008).
Moreover, Judge Berger looked to our Supreme Court's decision in Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 828 A.2d 64 (2003), which involved alleged violations of the CMWA and ultimately embraced the burden shifting framework articulated by the United States Supreme Court in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), superseded by statute on other grounds as stated in IBP, Inc. v. Alvarez, 546 U.S. 21, 41, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). In Anderson, the United States Supreme Court " addressed the proper and fair standard for the employee to meet in carrying out his burden of proof . . . when the employer has failed to comply with the record keeping provisions of the Fair Labor Standards Act [29 U.S.C. § 201 et seq. (FLSA)]. The court concluded: 'When the employer has kept proper and accurate records, the employee may easily discharge his burden by securing the production of those records. But where the employer's records are inaccurate or inadequate and the employee cannot offer convincing substitutes, a more difficult problem arises . . . In such a situation, we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.'" (Emphasis added.) Schoonmaker v. Lawrence Brunoli, Inc., supra 239-40. Judge Berger noted that " Schoonmaker instructs us that plaintiffs must do more than simply introduce the list of duties; they must produce sufficient evidence to show the amount and extent of work that each plaintiff performed on that list as a matter of just and reasonable inference so that the fact finder may determine whether the work was incidental to their job and if they were improperly compensated. At that point, the burden of production switches to the defendant." (Emphasis added.) Palmer v. Friendly Ice Cream Corp., supra, 49 Conn.L.Rptr. 884, . Indeed, when presented with similar facts and circumstances, the Superior Court has consistently rejected the arguments asserted by the plaintiff. See, e.g., Orozco v. Darden Restaurants, Inc., Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X03-CV-04-4022118-S (August 3, 2006, Langenbach, J.) (41 Conn.L.Rptr. 717, 718-19, ) (" [T]he court finds that extensive individualized inquiries will be necessary to establish both liability and the extent of the harm to each class member, so common questions of law or fact do not predominate." ([Emphasis added.]), aff'd, 287 Conn. 704, 950 A.2d 493 (2008); Peruta v. Outback Steakhouse of Florida Inc., 50 Conn.Supp. 51, 68, 913 A.2d 1160 (2006) (" The court is persuaded that the claimed violation of failing to segregate service and nonservice duties cannot be established by generalized proof"); Palmer v. Friendly Ice Cream Corp., supra, Superior Court, Docket No. X07-CV-044001612-S, (" Our law . . . would demand evidence proving that each individual server of the proposed class performed specific, nonserver duties during particular weeks within the pertinent time period." [emphasis added]); see also Bucchere v. Brinker International, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X01-CV-04-4000238-S, (November 8, 2006, Cremins, J.) (denying defendant's motion for summary judgment because issues of record keeping, appropriate notice, and what constituted " service versus nonservice work" presented mixed questions of law and fact).
In Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 241, 828 A.2d 64 (2003), our Supreme Court noted that the Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), approach " merely imposes a shift in the burden of production, and not the burden of persuasion . . . [T]he ultimate burden of persuading the trier of fact remains with the employee." (Footnote omitted.)
This court is aware of Judge Hennessey's decision in State of Connecticut Labor Department v. America's Cup, Superior Court, judicial district of Hartford, Docket No. CV-92-0516750 (April 15, 1994, Hennessey, J.) (11 Conn.L.Rptr. 379, ), which was cited by the plaintiff. Although the court in that case granted summary judgment in favor of the state based on similar facts and circumstances involving bartenders, it is noteworthy that the sole issue before the court was " whether the complainants are service employees or nonservice employees, as defined by § 31-62-E2(c) and (d) of the Labor Department regulations." (Internal quotation marks omitted.) Id., 380, . Thus, the court did not address whether the plaintiffs could rely on generalized proof to establish a violation of the CMWA. Moreover, this decision was decided without the benefit of our Supreme Court's decision in Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 828 A.2d 64 (2003).
Much like the aforementioned cases, the plaintiff here relies on the same kinds of " generalized proof" to support her motion for summary judgment. Notably, the plaintiff provides the following in support of her motion for summary judgment: (i) excerpts from the deposition of Maffucci, which generally establish that the defendant had a practice of requiring servers, including the plaintiff, to perform " side work" prior to and after scheduled shifts, to set up the restaurant before service, and also that servers were paid at the " tip credit" rate; (ii) charts listing the required server " side work" for the lunch, dinner, and patio shifts; and (iii) copies of the plaintiff's time records and her weekly earnings. The plaintiff has not presented any evidence that she has in fact performed the " side work" in question or that she in fact set up the restaurant before opening service on any particular day. See Palmer v. Friendly Ice Cream Corp., supra, 49 Conn.L.Rptr. 884, .
The court is persuaded by the well-reasoned opinions of Justice Eveleigh, Judge Berger, and Judge Sferrazza and concludes that a plaintiff must do more than rely on generalized proof to establish a violation of the CMWA under these circumstances. As Judge Berger noted, under the CMWA, the plaintiff " must produce sufficient evidence to show the amount and extent of work that each plaintiff performed [on the side work] list as a matter of just and reasonable inference so that the fact finder may determine whether the work was incidental to their job and if they were improperly compensated." Id.
Moreover, the court reaches this conclusion despite decisions from Federal District Courts addressing liability under the FLSA, 29 U.S.C. § 201 et seq., and the applicable federal regulations, 29 C.F.R. § 531.50 et seq., involving similar circumstances. See, e.g., 29 U.S.C. § 203(m); Inclan v. New York Hospitality Group, Inc., 95 F.Supp.3d 490, 497-98 (S.D.N.Y. 2015) (restaurant liable under FLSA for failing to satisfy tip credit notice requirement under 29 U.S.C. § 203(m) prior to taking tip credit); Chung v. New Silver Palace Restaurant, Inc., 246 F.Supp.2d 220, 229-31 (S.D.N.Y. 2002) (restaurant liable under FLSA for impermissibly pooling tips with individuals holding ownership interests in defendant's establishment because such individuals did not " customarily and regularly receive tips"); see also Salim Shahriar v. Smith & Wollensky Rest. Group, Inc., 659 F.3d 234, 240 (2d Cir. 2011) (" Under the FLSA an employer may not avail itself of the tip credit if it requires tipped employees to share their tips with employees who do not 'customarily and regularly receive tips'"). As previously noted, relevant decisions from the Superior Court involving the CMWA have indicated that a plaintiff must come forward with sufficient evidence demonstrating that he or she performed specific nonservice duties within the pertinent time frame in order to establish a violation of the CMWA. The plaintiff has not provided such evidence and attempts to rely on the same generalized proof that the Superior Court has consistently rejected.
Accordingly, the plaintiff's motion for summary judgment is denied in its entirety.
Because the court concludes that the plaintiff has not, in fact, established a violation of the CMWA, the court need not reach the plaintiff's request for damages, liquidated damages, and attorneys fees.
(a) Any employer who pays or agrees to pay to an employee less than the minimum fair wage or overtime wage shall be deemed in violation of the provisions of this part. (b) The Labor Commissioner shall adopt such regulations . . . as may be appropriate to carry out the purposes of this part. Such regulations . . . shall recognize, as part of the minimum fair wage, gratuities in an amount (1) equal to twenty-nine and three-tenths per cent, and effective January 1, 2009, equal to thirty-one per cent of the minimum fain wage per hour, and effective January 1, 2014, equal to thirty-four and six-tenths per cent of the minimum fain wage per hour, and effective January 1, 2015, equal to thirty-six and eight-tenths per cent of the minimum fair wage per hour for persons, other than bartenders, who are employed in the hotel and restaurant industry, including a hotel restaurant, who customarily and regularly receive gratuities, (2) equal to eight and two-tenths per cent, and effective January 1, 2009, equal to eleven per cent of the minimum fair wage per hour, and effective January 1, 2014, equal to fifteen and six-tenths per cent of the minimum fair wage per hour, and effective January 1, 2015, equal to eighteen and one-half per cent of the minimum fair wage per hour for persons employed as bartenders who customarily and regularly receive gratuities . . . (Emphasis added.)