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Marsteller v. Butterfield 8 Stamford LLC

United States District Court, D. Connecticut

September 27, 2017



          Alvin W. Thompson United States District Judge.

         The plaintiff, Lauren E. Marsteller (“Marsteller”), brings this action against Butterfield 8 Stamford (“BU 8 Stamford”), Butterfield 8 WP LLC (“BU 8 WP”), Public House Investments LLC (“PHI”), Lolas Stamford LLC (“Lolas Stamford”), John Gazzola (“Gazzola”), Ralph Battista, Jr. (“Battista”), Douglas Newhook (“Newhook”), and Ryan Slavin (“Slavin”), asserting claims for a hostile work environment, for sexual harassment and for retaliation, pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), and Conn. Gen. Stat. §§ 31-290 and 46a-60 et seq.. She also brings claims for unpaid overtime pursuant to the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq., and Conn. Gen. Stat. §§ 31-60(a) and 31-76(b), for intentional infliction of emotional distress, and for unreasonable intrusion on the seclusion of another. Defendants BU 8 WP, PHI and Battista have moved for summary judgment as to all claims in the plaintiff's First Amended Complaint against them. For the reasons set forth below, the defendants' motion for summary judgment is being granted as to BU 8 WP and Battista and denied as to PHI.


         Plaintiff Lauren E. Marsteller was at the time of the events relevant to this action employed by BU 8 Stamford. The plaintiff contends that she was hired by BU 8 Stamford but worked for both BU 8 Stamford and Lolas Stamford. Her business card had on it the names of both restaurants. Many employees worked for both BU 8 Stamford and Lolas Stamford.

         In or about May 2012, the plaintiff started to work for BU 8 Stamford and Lolas Stamford. Gazzola hired the plaintiff, and Newhook met with the plaintiff and Gazzola at the time she was hired. The plaintiff's direct supervisors were Newhook, the general manager of BU 8 Stamford and Lolas Stamford, and Slavin, the assistant manager of BU 8 Stamford. Newhook had the primary day-to-day control over the plaintiff's work schedule. Newhook and Gazzola communicated her normal start and end times. On or about October 20, 2012, the plaintiff's employment was summarily terminated by Newhook.

         BU 8 WP did not open for business until after the plaintiff's employment with BU 8 Stamford and Lolas Stamford was terminated. Gazzola testified that BU 8 WP was not operating until the end of 2012 even though the LLC was formed prior to that. Battista, the general manager of BU 8 WP, testified that BU 8 WP was opened in September 2013. The plaintiff stated that she believes that during her employment she sent the credit card batch to BU 8 WP, but she was not sure. The plaintiff was never directly employed by BU 8 WP.

         Battista might have met the plaintiff one time in passing while the plaintiff was employed at ¶ 8 Stamford. Battista did not hire or fire the plaintiff.

         The defendants contend that BU8 WP, BU8 Stamford and Lolas Stamford each maintain a separate corporate identity. Gazzola testified that he is the sole owner of BU 8 Stamford and Lolas Stamford and provided relevant tax forms. PHI was listed as the applicant and apparent owner of the trademark logo “Lola's Mexican Kitchen, ” under which Lolas Stamford operated its business. Pl.'s R. 56(a)2 Statement, Ex. A (“Doc. No. 67-1”) at 104-05 of 133. The plaintiff was provided with a PHI domain email account. During the relevant time period, employees at the manager level at ¶ 8 WP, BU 8 Stamford and Lolas Stamford would have been provided with PHI domain e-mail accounts. The plaintiff testified that she had seen several owners of BU 8 Stamford gather frequently and checks would be handed out to the individual owners.

         The only employee handbook produced by the defendants set forth the policies and practices of Butterfield 8 WP & Lola's Mexican Kitchen, LLC for the year 2013. But the handbook also applied to BU 8 Stamford. Newhook testified that the handbook would be “updated with a new year each year.” Pl.'s R. 56(a)2 Statement, Ex. C (Doc. No. 67-3) at 13 of 21, ll. 6-7. Slavin testified that the handbook for 2012 did not include BU 8 WP.

         The defendants contend that Brian Harrington is the sole member and sole owner of PHI and that Gazzola had no ownership interest in PHI. Gazzola received $5, 000 weekly from PHI. Gazzola testified that it was “paid through a management fee from [his] individual source and processed through payroll for purposes of health benefits.” Doc. No. 67-1 at 62 of 133, ll. 17-20. According to Gazzola's LinkedIn profile on May 8, 2014, Gazzola had been a principal of PHI for a period of 8 years and 9 months. Gazzola contends that the information was not accurate and that he is not a member of PHI. Gazzola admits that he was aware of some publications that had characterized him as an owner of PHI, and that he did not take steps to correct them.

         Battista was the executive chef of BU 8 Stamford when it was opened in May of 2009. He became the general manager of BU 8 Stamford in January of 2010. Battista worked for PHI in 2012 while he was a general manager of BU 8 Stamford. He left BU 8 Stamford in January 2012 and started working at Mulberry Street, another of Gazzola's restaurants for which PHI provided management support. During his time at Mulberry Street, Battista worked for PHI and not Mulberry Street. Battista received checks from PHI. Gazzola was Battista's boss and had the authority to award him performance bonuses, and Battista did not know who Gazzola worked for. Battista testified that both Harrington from PHI and Gazzola were his bosses, and had the authority to hire and fire him. Battista was transferred by Gazzola from Mulberry Street to BU 8 WP in September 2013. Battista testified that he was employed by PHI while serving as the general manager of BU 8 WP. According to Battista, there were employees of PHI who worked at multiple locations, including himself and Newhook. Newhook worked as the manager of BU 8 Stamford in 2009, and was transferred to Butterfield 8 New York City in 2010. He then moved back to Lolas Stamford at the end of 2010. He served as general manager for both BU 8 Stamford and Lolas Stamford from 2011 to 2013. Newhook testified that he had been working with Gazzola since 2008. The defendants contend that “PHI was formed to provide administrative and promotional advice to restaurants and to create a corporate entity which could obtain cost-effective group health insurance and other benefits to the owners of restaurants it serves” and PHI also provides accounting and payroll services to BU 8 WP, BU 8 Stamford and Lolas Stamford. Defs.' Mem Supp. of Summ. J. (Doc. No. 59) at 7. The defendants further state that “PHI's function with respect to these defendants is purely ministerial.” Id.

         The plaintiff disputes that the function of PHI is purely ministerial. Battista testified that PHI was a management company of the restaurants and provided additional support including “payroll, cost control [and] help scheduling.” Pl.'s R. 56(a)2 Statement, Ex. B (Doc. No. 67-2) at 13 of 28, ll. 2-3. As a manager, Battista “would enter the payroll into the system taking the information from the point of sale and entering it into the payroll to make sure it was accurate.” Id. at ll. 18-22. Battista also testified that “payroll encompasses a lot of things. It encompasses entering payroll into the system, and payroll also covers scheduling of employees and things like that.” Id. at 18-19 of 28, ll. 24-4. In Battista's LinkedIn profile on May 8, 2014, Battista held himself out as having been the regional manager of PHI from June 2011 to June 2013, and stated that he hired and trained “management teams of each concept, ” managed all preopening activities and maintained quality controls. Pl.'s R. 56(a)2 Statement, Ex. H (Doc. No. 67-8) at 2 of 3. The restaurants under his supervision included BU 8 WP, Mulberry Street and Lola's Mexican Kitchen White Plains.

         Newhook testified that he, Gazzola and Battista received human resources training together at a “summit” in Philadelphia including training on hiring and termination, in either late 2012 or early 2013. On PHI's LinkedIn business profile, PHI indicated that it changed its name to Table 95 Hospitality, but PHI's name remained “Public House Investments, LLC” as of December 28, 2016.


         A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. Fed.R.Civ.P. 56(a). See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir. 1994). When ruling on a motion for summary judgment, the court may not try issues of fact, but must leave those issues to the jury. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987). Thus, the trial court's task is “carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined . . . to issue-finding; it does not extend to issue-resolution.” Gallo, 22 F.3d at 1224.

         Summary judgment is inappropriate only if the issue to be resolved is both genuine and related to a material fact. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. An issue is “genuine . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248 (internal quotation marks omitted). A material fact is one that would “affect the outcome of the suit under the governing law.” Id. Only those facts that must be decided in order to resolve a claim or defense will prevent summary judgment from being granted. Immaterial or minor facts will not prevent summary judgment. See Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d Cir. 1990).

         When reviewing the evidence on a motion for summary judgment, the court must “‘assess the record in the light most favorable to the non-movant and . . . draw all reasonable inferences in [the non-movant's] favor.'” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990)). However, the inferences drawn in favor of the nonmovant must be supported by evidence. “‘[M]ere speculation and conjecture'” is insufficient to defeat a motion for summary judgment. Stern v. Trustees of Columbia Univ., 131 F.3d 305, 315 (2d Cir. 1997) (quoting Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d. Cir. 1990)). Moreover, the “mere existence of a scintilla of evidence in support of the [nonmovant's] position” will be insufficient; there must be evidence on which a jury could “reasonably find” for the nonmovant. Anderson, 477 U.S. at 252.


         The defendants move for summary judgment on the grounds that there is no genuine issue that Battista, BU 8 WP and PHI neither were joint employers of the plaintiff, nor part of a single integrated enterprise that employed her.

         A. Single Integrated Enterprise Theory

         “A single employer situation exists where two nominally separate entities are actually part of a single integrated enterprise so that, for all purposes, there is in fact only a single employer.” Clinton's Ditch Co-op Co. v. N.L.R.B.,778 F.2d 132, 137 (2d Cir. 1985) (quoting N.L.R.B. v. Browning-Ferris Indus. of Pennsylvania, Inc.,691 F.2d 1117, 1122 (3d Cir. 1982)) (internal quotation marks omitted). The single employer doctrine applies in the civil rights context. See Murray v. Miner,74 F.3d 402, 404 (2d Cir. 1996). “[F]our factors determine whether two entities will be regarded as a single employer subject to joint liability for employment-related acts. They are: (1) interrelated operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership.” Id. (citing Radio & Television Broad. Technicians Local Union 1264 v. Broad. Serv. of Mobile,380 U.S. 255, 256 (1965)). Courts have applied the four-factor test for FLSA purposes. See Yap v. Mooncake Foods, Inc.,146 F.Supp.3d 552, 558 ...

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