United States District Court, D. Maryland
MEMORANDUM OPINION 
L. HOLLANDER, UNITED STATES DISTRICT JUDGE
Lucas Gregori and William Gouge filed suit against defendant
Market Street Management, LLC, D/B/A Family Meal (Frederick)
(“Market Street”), alleging violations of the
Fair Labor Standards Act of 1938 (“FLSA”), 29
U.S.C. § 201 et. seq.; the Maryland Wage and
Hour Law (“MWHL”), Md. Code (2016 Repl. Vol.),
§ 3-401 et. seq. of the Labor and Employment
Article (“L.E.”); and the Maryland Wage Payment
and Collection Law (“MWPCL”), L.E. § 3-501
et. seq. ECF 2 (Complaint). They assert that Market
Street improperly used a tip pool at the Frederick, Maryland
location of its restaurant, Family Meal, where Gregori and
Gouge worked as waiters from November 2014 through December
2015. ECF 2, ¶¶ 28-29.
pending is Market Street's motion for summary judgment.
ECF 47. The motion is supported by a memorandum
(ECF 47-1) (collectively, the “Motion”) and
several exhibits.Gregori opposes the motion (ECF 52) and has
submitted several exhibits. Gouge failed to file a response
after the Clerk issued a Rule 12/56 notice, dated July 25,
2018. ECF 54. Market Street has replied (ECF 53) and
submitted another exhibit.
argument is necessary to resolve the Motion. See
Local Rule 105.6. For the reasons set forth below, I shall
grant Market Street's Motion.
plaintiffs' employment, Family Meal used a “tip
pool, ” under which Family Meal collected and combined
the gratuities from tipped employees, such as plaintiffs, at
the end of each shift and entered the tip information into a
spreadsheet. ECF 47-2 at 2, Vickers Decl., ¶ 6. The tips
were then allocated among tip pool participants, including
plaintiffs, based on the number of hours the participants
worked during the day. Id. On a weekly basis, Family
Meal distributed the allocated tips to the tip pool
participants as a separate line item on their paychecks.
Id., ¶ 7.
to plaintiffs, managers improperly participated in the tip
pool, in violation of the FLSA and MWHL, thereby invalidating
the tip pool. They assert that because the tip pool was
invalid, Market Street failed to compensate them properly, as
required under the relevant law, and they are therefore owed
identify four individuals employed by Family Meal who
allegedly participated improperly in the tip pool: (1) James
Vickers, (2) Lyndsay Rudolph, (3) Josh Cross, and (4)
Elizabeth Reap. ECF 2, ¶ 39. At the relevant time,
Vickers was the General Manager and Rudolph was the Assistant
General Manager. Rudolph became the General Manager in
February 2016. Id. at ¶¶ 2-3; ECF 47-2 at
2, Vickers Decl., ¶¶ 2-3; ECF 57-2, Rudolph Dep. at
6, Tr. 20:6-11; ECF 47-2 at 4, Rudolph Decl., ¶¶
Reaps's deposition, which took place after she no longer
worked for defendant, she claimed that she worked at Family
Meal for five and a half years, in various capacities. These
included server, bartender, trainer, shift supervisor, and
opener/closer. ECF 52-6, Reap Deposition at 3-4, Tr.
the relevant time, Cross and Reap were bartenders at Family
Meal. ECF 47-2 at 4, Rudolph Decl., ¶ 12. As bartenders,
they served food, tended bar, and otherwise interacted with
customers. See, e.g., ECF 52-1, Gregori
Response to Interrogatory 19; ECF 52-6, Reap Deposition at
14-15, Tr. 53:17-54:1; ECF 52-8, Gregori Deposition at 19-20,
Tr. 73:17-74-10 (asserting that Reap was a manger). Neither
had high-level managerial responsibilities, such as hiring or
firing employees, maintaining employee records, or
determining how much employees were paid. ECF 47-2 at 2,
Vickers Decl., ¶ 8; ECF 47-2 at 4, Rudolph Decl., ¶
12. Instead, their duties were more analogous to those of
low-level supervisors. For example, they participated in
interviews, trained new hirees, set schedules, and supervised
employees. ECF 52-1, Gregori Response to Interrogatory 19;
ECF 52-2, Gregori Decl. ¶¶ 18-19. Reap also once
exercised discipline against Gregori by writing up Gregori
for being late. ECF 52-1, Gregori Response to Interrogatory
13. Gregori claims his subsequent firing was partially based
on this write-up. Id.
undisputed that Vickers and Rudulph did not participate in
the tip pool. See, e.g., ECF 52 (failing to
dispute that Vickers and Rudolph were not tip pool
participants). By contrast, Cross and Reap participated in
the tip pool. But, central to this case, plaintiffs and
Market Street disagree over their roles at work and whether
their participation in the tip pool was proper. ECF 47-1; ECF
suit contains three counts: (1) violation of the FLSA (Count
I); (2) violation of the MWHL (Count II); and (3) violation
of the MWPCL (Count III). ECF 2. In sum, plaintiffs maintain
that Cross and Reap were managers under the FLSA and MWHL,
and therefore they improperly participated in the tip pool.
Conversely, Market Street contends that Cross and Reap were
not managers and thus were valid tip pool participants.
facts are included in the Discussion.
STANDARD OF REVIEW
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is appropriate only “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24
(1986); see also Formica v. Aylor, ___ Fed.Appx.
___, 2018 WL 3120790, at *7 (4th Cir. June 25, 2018);
Iraq Middle Mkt. Dev. Found. v. Harmoosh, 848 F.3d
235, 238 (4th Cir. 2017). The nonmoving party must
demonstrate that there are disputes of material fact so as to
preclude the award of summary judgment as a matter of law.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 585-86 (1986); see also Gordon
v. CIGNA Corp., 890 F.3d 463, 470 (4th Cir. 2018).
Supreme Court has clarified that not every factual dispute
will defeat a summary judgment motion. “By its very
terms, this standard provides that the mere existence of
some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no
genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (emphasis in original).
is “material” if it “might affect the
outcome of the suit under the governing law.”
Id. at 248. There is a genuine issue as to material
fact “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Id.; see Variety Stores, Inc. v. Wal-Mart
Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018);
Sharif v. United Airlines, Inc., 841 F.3d 199, 2014
(4th Cir. 2016); Raynor v. Pugh, 817 F.3d 123, 130
(4th Cir. 2016); Libertarian Party of Va. v. Judd,
718 F.3d 308, 313 (4th Cir. 2013). On the other hand, summary
judgment is appropriate if the evidence “is so
one-sided that one party must prevail as a matter of
law.” Anderson, 477 U.S. at 252. And,
“the mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient;
there must be evidence on which the jury could reasonably
find for the plaintiff.” Id.
“[a] party opposing a properly supported motion for
summary judgment ‘may not rest upon the mere
allegations or denials of [his] pleadings,' but rather
must ‘set forth specific facts showing that there is a
genuine issue for trial.'” Bouchat v. Balt.
Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (quoting former Fed.R.Civ.P. 56(e)), cert.
denied, 514 U.S. 1042 (2004); see also Celotex,
477 U.S. at 322-24. And, the court must view all of the
facts, including reasonable inferences to be drawn from them,
in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. Ltd., 475 U.S. at 587;
accord Variety Stores, Inc., 888 F.3d at 659;
Gordon, 890 F.3d at 470; Roland v. United States
Citizenship & Immigration Servs., 850 F.3d 625, 628
(4th Cir. 2017); Lee v. Town of Seaboard, 863 F.3d
323, 327 (4th Cir. 2017); FDIC v. Cashion, 720 F.3d
169, 173 (4th Cir. 2013).
district court's “function” is not “to
weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249; accord
Guessous v. Fairview Prop. Inv., LLC, 828 F.3d 208, 216
(4th Cir. 2016). Thus, in considering a summary judgment
motion, the court may not make credibility determinations.
Jacobs v. N.C. Administrative Office of the Courts,
780 F.3d 562, 569 (4th Cir. 2015); Mercantile Peninsula
Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007).
Therefore, in the face of conflicting evidence, such as
competing affidavits, summary judgment ordinarily is not
appropriate, because it is the function of the fact-finder to
resolve factual disputes, including matters of witness
credibility. See Black & Decker Corp. v. United
States, 436 F.3d 431, 442 (4th Cir. 2006); Dennis v.
Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45
(4th Cir. 2002).
to avoid summary judgment, there must be a genuine dispute as
to material fact. In Iraq Middle Mkt. Dev. Found.,
848 F.3d at 238, the Court reiterated: “A court can
grant summary judgment only if, viewing the evidence in the
light most favorable to the non-moving party, the case
presents no genuine issues of material fact and the moving
party demonstrates entitlement to judgment as a matter of
insists that this matter turns on the credibility of the
parties and their witnesses. ECF 52 at 5. Therefore, he
argues that summary judgment is not appropriate. Id.
at 5-6. Market Street maintains that the undisputed evidence
supports its position.