United States District Court, D. Maryland, Southern Division
GEORGE J. HAZEL, District Judge.
Plaintiff. Jessica Marlene Melgar Morataya, filed this lawsuit against Defendants Nancy's Kitchen of Silver Spring, Inc. ("Nancy's Kitchen"). Roy G. Barreto ("Mr. Barreto"), and Vanda L. Barreto ("Mrs. Barreto") (collectively "Defendants") for purported violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., the Maryland Wage and Hour Law ("MWHL"). Md. Code. Lab. & Empl. Article ("LE") § 3-401 et seq., and the Maryland Wage Payment and Collection Law ("MWPCL"), Md. Code, LE § 3-501 et seq. Defendants have moved for partial summary judgment, seeking to dismiss Mrs. Barreto from this lawsuit. Plaintiff has also moved for partial summary judgment, requesting the Court find as a matter of law (1) that Nancy's Kitchen is an enterprise engaged in commerce, (2) that Defendants are not entitled to a tip credit to offset against their minimum wage and overtime obligations, and (3) that Mr. Barreto is an employer under the relevant wage statutes.
This Memorandum Opinion and the accompanying Order address Defendants' Motion for Partial Summary Judgment and Plaintiff's Cross Motion for Partial Summary Judgment. ECF Nos. 37 & 39. A hearing is not necessary. See Loc. R. 105.6. For the reasons set forth in this Memorandum Opinion, Defendants' Motion for Partial Summary Judgment is GRANTED and Plaintiffs Cross Motion for Partial Summary, Judgment is GRANTED.
In reviewing a motion for summary judgment, the Court considers the facts in the light most favorable to the non-movant, drawing all justifiable inferences in that party's favor. Ricci v. DeStefano, 557 U.S. 557, 585-86 (2009); George & Co., LLC v. Imagination Entm't Ltd., 575 F.3d 383, 391-92 (4th Cir. 2009): Dean v. Martinez, 336 F.Supp.2d 477, 480 (D. Md. 2004). Unless otherwise stated, this background is composed of undisputed facts.
Nancy's Kitchen is a restaurant located at 3808 International Drive, Silver Spring. Maryland. ECF No. 39-2. In addition to food, Nancy's Kitchen serves beer and wine-including, Heineken, Budweiser, Miller Light. Corona, and wine from California-that is purchased from the Montgomery County Liquor Board. ECF No. 39-7 at 11-12. In 2012 and 2013. Nancy's Kitchen's gross sales exceeded $500.000.00. ECF No. 39-6.
Plaintiff began working as a server for Nancy's Kitchen in 2010 or 2011. ECF No. 39-7 at 40; ECF No. 39-11 at ¶ 3. Mr. Barreto is the sole owner and manager of Nancy's Kitchen. ECF No. 39-5 at 3. Mr. Barreto has the ability to hire and fire employees. ECF No. 39-7 at 6-8. He sets employee wages, "keeps the time records, does payroll, observes the hours worked by the employees[, ] and keeps pay records." ECF No. 39-5 at 2. According to Plaintiff. Mr. Barreto hired her, set her pay rate, set her hours, promoted her, and supervised her. ECF No. 39-11 at ¶ 7. Plaintiff also testified that John Fernandes, who runs the restaurant in Mr. Barreto's absence, and Mr. Barreto were the only individuals who provided Plaintiff with instruction regarding the performance of her duties. ECF No. 41-4 at 31. She said that she typically did not have direct contact with Mrs. Barreto. Id. at 126.
According to Mrs. Barreto, Nancy's Kitchen employs her as an administrative assistant and she does not have an ownership interest in the business. ECF No. 39-9 at 8 & 11. Mrs. Barreto receives a salary of $1.615.38 bi-weekly. Id. at 8. As an administrative assistant, among other duties, she sends emails, faxes menus, files invoices, makes copies, and purchases stationary. Id. at 14-15. In addition to those traditional administrative tasks, she also runs errands, decorates and cleans up for catering jobs, delivers food, and purchases beer and wine. Id. at 11-13. According to Mrs. Barreto, she is not responsible for payroll. id. at 15. however, Plaintiff testified that Mrs. Barreto would sometimes visit Nancy's Kitchen to count the money in the register and the tip bag. ECF No. 41-4 at 126. Plaintiff further notes that Mrs. Barreto would pay her by handing her an envelope with Mrs. Barreto's notes on the outside of the envelope explaining how the payment was calculated. ECF No. 39-11 at ¶¶ 10-12. Plaintiff was paid by both cash and check. ECF No. 41-4 at 21. Mrs. Barreto does not dispute the allegation that she handed Plaintiff her wages, but adds that she did this only when Mr. Barreto was not available. ECF No. 39-9 at 15 & 21-22. Even then, Mrs. Barreto testified, she prepared and delivered the paychecks and cash by retrieving the cash from her husband on a dresser in the couple's bedroom, placing the cash in an envelope for employees, and writing the amount that was to be given to the employee on the envelope based entirely on Mr. Barreto's calculations. Id. at 21-24. Plaintiff provides contradictory evidence on this point, stating that when she complained to Mr. Barreto about her pay, he would respond by stating that it was Mrs. Barreto who "did the calculations." ECF No. 39-11 at ¶ 11. However. Plaintiff acknowledges that Mr. Barreto signed her paychecks, ECF No. 41-4 at 32, although there is evidence that Mrs. Barreto did occasionally sign checks from Nancy's Kitchen's bank account. ECF No. 39-13.
On June 27, 2013. Plaintiff filed a complaint against Defendants for violations of the minimum wage and overtime provisions of the FLSA, violations of the minimum wage provisions of the MWHL, and violations of the MWPCL. ECF No. 1. Plaintiff amended her complaint on July 1, 2013. ECF No. 4. Plaintiff claims that Defendants paid her the same hourly wage regardless of the number of hours she worked, including any hours over 40 per week that should have been paid as overtime wages. Id. at ¶ 16. Plaintiff also claims that Defendants did not permit her to keep all of the tips she received from customers. Id. at ¶ 17. From March 2011 to August 2012, Plaintiff alleges that Defendants paid her $4.00 per hour and no more than $45.00 from tips per day, amounting to $270 per week for tips. Id. at ¶¶ 13 & 17. From August 2012 to June 2013, Plaintiff alleges that Defendants continued to pay her an hourly wage of $4.00 and no more than $50.00 a day from tips, amounting to $300 per week for tips. Id. at ¶¶ 14 & 17. Plaintiff further alleges that after June 2013. Defendants paid her $4.15 per hour and disbursed $50.00 per day from the tips she earned during the week and $65.00 per day from tips she earned on the weekends, amounting to $330 per week in tips. Id. at ¶¶ & 17.
II. STANDARD OF REVIEW
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Meson v. GATX Tech. Servs, Corp., 507 F.3d 803, 806 (4th Cir. 2007); see also Fed.R.Civ.P. 56(a). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden of demonstrating that no genuine dispute exists with regard to material facts. Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). Notably, the moving party can demonstrate that there is no genuine issue of material fact by establishing that "there is an absence of evidence in support of the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317. 325 (1986). If the party seeking summary judgment demonstrates that there is no admissible evidence to support the nonmoving party's case, the burden shifts to the nonmoving party to identify specific facts showing that there is a genuine issue for trial. Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534. 535 (D. Md. 2007). To satisfy this burden. the nonmoving party must produce competent evidence on each element of his claim. Miskin v. Baxter Healthcare Carp., 107 F.Supp.2d 669, 671 (D. Md. 1999). However, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson. 477 U.S. at 247-48 (emphasis in original). The evidentiary materials presented must show facts from which the fact finder could reasonably find for the party opposing summary judgment. Id. at 250-51.
a. Defendants' Motion for Partial Summary Judgment
Defendants request that the Court find that Mrs. Barreto was not Plaintiff's employer during the relevant time period, and therefore, is not individually liable and should be dismissed from the amended complaint. ECF No. 37-1. The FLSA defines an "employer" to include "any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. § 203(d). Because the MWHL is the state equivalent of the FLSA. it provides a similar definition of "employer." See Md. Code, LE § 3-401. Employer is a broad definition and may include more than one employer. 29 C.F.R. § 791.2 ("... [I]f the facts establish that the employee is employed jointly by two or more employers... all of the employee's work for all of the joint employers ...