United States District Court, D. Connecticut
EDGAR BENAVIDEZ, ALI KAZI, MARVIN CASTANEDA, IVAN PERALTA-CABRERA, LUIS VICTORIA, PATRICK DESROSIERS, ROCIO RIBEIRO, DOUGLAS MOLINA, WILLIAM ACAPANA, RODOLPHO OYARIDE, FERNANDO FAJARDO, JAIME DIAZ, ALBERTO GONZALES, KLEVER ORDONEZ, AMIR SOTO, MARCELO VILLACIS, ANGEL CAMPOVERDE, JAMES LOPEZ, IVAN P. ABRIL, MARIA JARILLO, FREDI SOTO, and NILO HUYHUA, on behalf of themselves and others similarly situated, Plaintiffs,
GREENWICH HOTEL LIMITED PARTNERSHIP d/b/a Hyatt Regency Greenwich, HYATT EQUITIES, L.L.C., and HYATT CORPORATION, Defendants.
RULING AND ORDER ON MOTION FOR SUMMARY
A. BOLDEN UNITED STATES DISTRICT JUDGE
March 7, 2018, Greenwich Hotel Limited Partnership, Hyatt
Equities, L.L.C., and the Hyatt Corporation (collectively,
“Defendants”) moved for summary judgment against
Edgar Benavidez, Ali Kazi, Marvin Castaneda, Ivan
Peralta-Cabrera, Luis Victoria, Patrick Desrosiers, Rocio
Ribeiro, Douglas Molina, William Acapana, Rodolpho Oyaride,
Fernando Fajardo, Jaime Diaz, Alberto Gonzales, Klever
Ordonez, Amir Soto, Marcelo Villacis, Angel Campoverde, James
Lopez, Ivan P. Abril, Maria Jarillo, Fredi Soto, and Nilo
Huyhua (“Plaintiffs”). See Motion for
Summary Judgment, dated Mar. 7, 2018 (“Mot. Summ.
J.”), ECF No. 101; Defendants' Memorandum of Law in
Support of Mot. Summ. J., dated Mar. 7, 2018
(“Defs.' Mem.”), ECF No. 101-1;
Defendants' Local Rule 56(a)(1) Statement of Undisputed
Material Facts in Support of Mot. Summ. J., dated Mar. 7,
2018 (“Defs.' SMF”), ECF No. 101-2.
April 25, 2018, Plaintiffs opposed Defendants' motion.
See Plaintiffs' Memorandum in Opposition to Mot.
Summ. J., dated Apr. 25, 2018 (“Pls.' Opp.”),
ECF No. 106-1; Plaintiffs' Local Rule 56(a)(2) Statement
of Facts in Opposition to Mot. Summ. J., dated Apr. 25, 2018
(“Pls.' SMF”), ECF No. 106.
following reasons, Defendants' motion for summary
judgment is GRANTED IN PART AND DENIED IN PART.
motion is granted with respect to the federal claims, but
denied with respect to the Connecticut law claims, which are
dismissed without prejudice to refiling in state court.
FACTUAL AND PROCEDURAL BACKGROUND
Factual Allegations 
have all been employed as banquet servers at the Hyatt
Regency Greenwich hotel, located at 1800 East Putnam Avenue
in Old Greenwich, Connecticut. First Amended Complaint, dated
Sept. 19, 2016 (“Am. Compl.”), ECF No. 37-3,
¶ 1. Edgar Benavidez, Ali Kazi, Marvin Castaneda, Ivan
Peralta-Cabrera, Luis Victoria, Patrick Desrosiers, William
Acapana, Rodolfo Oyaride, Fernando Fajardo, Jaime Diaz,
Alberto Gonzales, Amir Soto, Marcelo Villacis, Angel
Campoverde, James Lopez, Maria Jarillo, and Fredi Soto have
all been employed by Defendants as banquet servers for at
least ten years. See Am. Compl. ¶¶ 46-51,
54- 58, 60-63, 65-66. Rocio Ribeiro, Douglas Molina, Klever
Ordonez, and Nilo Huyhua have all been employed as banquet
servers for at least six years. Id. ¶¶ 52,
53, 59, 67.
allege that Ivan P. Abril has been employed as a banquet
server at the hotel for approximately eighteen years.
Id. ¶ 64. Defendants admit that he was
previously employed as a banquet server, but deny that he has
been employed for eighteen years. Answer to First Amended
Complaint, dated Dec. 16, 2016 (“Am. Ans.”), ECF
NO. 62, at 14. They do not provide an alternative estimate of
the length of his employment. Id.
all reside in either Fairfield County, Connecticut or
Westchester County, New York. Am. Compl. ¶¶ 6-27.
Hotel Limited Partnership is a limited partnership organized
under the laws of Connecticut, and is the owner of the Hyatt
Regency Greenwich hotel. Answer to First Amended Complaint,
dated Dec. 16, 2016 (“Am. Ans.”), ECF NO. 62, at
8. Hyatt Equities, L.L.C. (“Hyatt Equities”) is a
limited liability corporation incorporated in Delaware, and
is the general partner of Greenwich Hotel Limited
Partnership. Id. at 9. The Hyatt Corporation
(“Hyatt Corp.”) is a limited liability
corporation incorporated in Delaware, and is the agent of
Greenwich Hotel Limited Partnership. Id. at 9.
allege that, at all relevant times, they were employees of
Defendants, and were jointly employed by Defendants. Am.
Compl. ¶¶ 28, 40. Defendants deny that they were
joint employers, and admit only that “Plaintiffs were
employees of Hyatt Corporation d/b/a Hyatt Regency
Greenwich.” Am. Ans. at 7.
Allegations as to Job Duties
banquet servers, Plaintiffs have served at special events
held at the Hyatt Regency Greenwich, such as conferences,
weddings, and other life celebrations. Their regular duties
include: “the collecting and setting up of equipment
needed for the event; setting up tables; taking orders from
customers; carrying trays to tables; serving food to
customers; all other general service that customers need and
require; cleaning tables after events; breaking down the room
after events; and all other work needed to physically set up
events and clean up after them.” Am. Compl. ¶ 76.
other categories of employees also have job functions related
to these events: housemen, bartenders, and banquet captains.
Am. Compl. ¶¶ 71-85.
houseman's regular duties include “the setting up
of banquet rooms; the resetting of them to their original
state after the event has concluded; and during the event,
assisting banquet servers and transporting tables and
equipment.” Am. Compl. ¶ 77.
bartender's regular duties include “the setting up
of the bar for the event; making drinks during the event, and
the breaking down of the bar after the event.”
Id. ¶ 78.
parties dispute the scope of the regular duties of a banquet
generally allege that banquet captains “have had, and
continue to have, the power to control the banquet servers,
bartenders and housemen employed within the banquet
department at the Hotel, including Plaintiffs.”
Id. ¶ 71. Plaintiffs have identified four
specific individuals as banquet captains in their Amended
Complaint: Dan Ridell, George Mickaiel, Dennis Carrington,
and Francis Tobias. Id. ¶ 70.
they allege that the banquet captains are “the
supervisors of the banquet events and supervise the banquet
servers, bartenders and housemen while these employees
perform their work; i.e., the Captains are the bosses of
these employees during the set-up of the banquets, the actual
banquets, and breakdown of them.” Id. ¶
72. At pre-shift meetings, Plaintiffs allege that “the
Captains advise the banquet servers and housemen of all
pertinent information concerning the upcoming events
including the menu.” Id. ¶ 73.
allege that “at pre-shift meetings, as well as during
the events, the Captains assign particular tables to each
banquet server, and assign various duties to banquet servers
including the service of hors d'oeuvres, the cleanup of
the reception area, the final work needed to set up the room,
the refilling of water glasses, the supplying of bread and
butter to tables, and the maintenance of candles on the
tables.” Id. ¶ 74. Plaintiffs also allege
that “at pre-shift meetings, as well as during the
events, the Captains assign the housemen duties with respect
to the setting up and refreshing of the conference and food
and beverage rooms.” Id. ¶ 75.
allege that “[t]he Captains do not perform any banquet
server, houseman or bartender duties; rather, they only
perform supervisor duties by which they supervise those types
of employees.” Id. ¶ 79. Plaintiffs also
allege that “[p]rior to and after the events, the
Captains occasionally have superficial, de minimus
contacts with the customers; however, once the event begins
the Captains do not provide any service to the customers, and
have typically secluded themselves within the banquet office
during the term of the banquets while the banquet servers
serve the customers as needed, and the housemen and
bartenders perform their regular duties.” Id.
¶ 80. Plaintiffs further allege that “Captains
have had the power to discipline employees, including banquet
servers, bartenders and housemen, and have in fact done so
by, among other things, ‘writing them up', sending
employees home when they are late, ordering employees to work
through lunch, and punishing them by assigning them difficult
tasks and to difficult events.” Id. ¶ 81.
allege, on information and belief, that “all of the
Captains participate in the evaluation of employees,
including Plaintiffs, by collecting the pertinent information
that is needed to assess the performance of the employees,
and Ridell collects and synthesizes all the reported
information with respect to the evaluation that is eventually
presented to the employee.” Id. ¶ 82.
Plaintiffs further allege that “Captains have
controlled the schedules of housemen, bartenders and banquets
servers, including Plaintiffs, by among other things, setting
their schedules; changing their schedules including sending
employees home early from events; calling them at any time,
even as late as only hours before an event is to occur, to
advise then that they are not needed; and requiring housemen
to work as banquet servers, ” id. ¶ 83,
and that “[a]t least one of the Captains has had the
power to approve or deny vacation requests or requests for
days off for personal reasons, ” id. ¶
deny nearly all of these allegations as to the banquet
captains' duties. See Am. Ans. at 16-19. They
admit only that “[a]t pre-shift meetings, the Captains
advise the banquet servers and housemen of all pertinent
information concerning the upcoming events including the
menu.” Id. at 16 (quoting Am. Compl. ¶
Agreement with Plaintiffs' Union
parties do not dispute that, since September 1, 2014, the
terms and conditions of Plaintiffs' employment have
generally been defined according to the collective bargaining
agreement between Plaintiffs' union, UNITE HERE Local 217
and the Hyatt Corporation, as an agent of the Greenwich Hotel
Limited Partnership, doing business as the Hyatt Regency
Greenwich. Defs.' SMF ¶ 6; Pl.'s SMF ¶ 6.
That agreement recognizes that UNITE HERE Local 217 is the
“sole and exclusive bargaining representative with
respect to wages, hours and other conditions of employment
for all full-time and regular part-time employees”
employed by the Hyatt Regency Greenwich in the job
classifications specified in Appendix A of the
agreement.See Labor Agrmt. between Hyatt
Corp., as an agent of Greenwich Hotel Ltd. P'ship d/b/a
Hyatt Regency Greenwich, and UNITE HERE, Local 217, effective
Sept. 1, 2014-Aug. 31, 2020 (“CBA”), annexed as
Ex. B to Declaration of Marvin Castaneda, annexed to
Pls.' Opp., ECF No. 106-4, at § 1.1.
A specifies the contract hourly rates for three
“commissioned classifications”: banquet
servers/bartenders, banquet captains, and IRD [in-room
dining] servers. CBA at App'x A. Under the contract, the
base hourly pay rates for banquet servers/bartenders increase
biannually as follows:
Banquet Server/ Bartender
the CBA, events requiring banquet services shall normally be
subject to a service charge of twenty-three percent of food,
beverage, and room rental costs. CBA § 30.6. Those
service charges are then placed into what the agreement
describes as a service charge pool. Id. In addition,
the CBA requires that fifty percent of fees charged for any
carving and pasta stations, corkage fees, and extra staffing
fees shall be allocated to the service charge pool.
Id. Finally, the CBA dictates that all of the tips
received by banquet servers, captains, and bartenders are
placed into the service charge pool. Id.
further provides that the service charge pool is then
allocated among the workers as follows: 69% to banquet
servers and banquet captains, 3% to convention services
housemen and convention services supervisors, and 28% to the
Hyatt Regency Greenwich as an administrative fee.
to the CBA, banquet captains' duties “are to
facilitate the event and work with the kitchen and stewarding
to ensure the function is prepared properly.”
Id. In addition, absent unusual circumstances,
banquet captains are not to be scheduled for work more than
two hours before an event's starting time. Id.
Plaintiffs' Allegations as to Defendants' Pay
allege that the above-described service charge pool
arrangement, as well as the pool used prior to the CBA's
effective date, results in two allegedly illegal pay
Plaintiffs argue that Defendants “unlawfully required
Plaintiffs to pool their tips with banquet captains who have,
and continue to, manage and supervise Plaintiffs.” Am.
Compl. ¶ 70. Second, they allege that Defendants used
that same pool to take a tip credit against the hourly
minimum wage rate. Am. Compl. ¶ 87.
result, they contend that Defendants failed to pay Plaintiffs
a minimum wage for all hours worked, in violation of the Fair
Labor Standards Act, 29 U.S.C. § 201 et seq.,
and specifically §§ 203(m), 206, and 215(a)(2).
Plaintiffs therefore seek “their unpaid minimum wages
including the amount of the tip credits that were taken by
Defendants, damages for unreasonably delayed payment of
wages, liquidated damages, reasonable attorneys' fees[, ]
and costs and disbursements of the action[, ] pursuant to 29
U.S.C. § 216(b).” Id. ¶ 93.
further claim that Defendants unlawfully diverted
“portions of Plaintiffs' wages, the tips/gratuities
they were entitled to, ” in violation of Connecticut
General Statute § 31-71e, and seek to recover “the
tips/gratuities that [Defendants] diverted from Plaintiffs,
damages for unreasonably delayed payment of those
tips/gratuities, liquidated damages, reasonable
attorneys' fees[, ] and costs and disbursements of the
action” under Connecticut General Statute § 31-72.
Id. ¶¶ 95-96 (citing Conn. Gen. Stat.
§§ 31-71e, 31-72).
dispute Plaintiffs' characterizations. They argue,
rather, that the pay structure is not a “tip
pool” at all, because the charges at issue are not
tips, but mandatory service charges. Defs.' Mem. at 3
(“Under the FLSA, there is a clear distinction between
tips, on the one hand, and commissions or service charges, on
the other. A tip is voluntarily paid by a guest, while a
service charge is imposed upon the guest by the hotel or
restaurant.”); see also Declaration of Tony
Centrone, dated Feb. 27, 2018 (“Centrone Decl.”),
annexed as Ex. 1 to Defs.' SMF, ¶¶ 2-3
(“Hyatt imposes a service charge on its customers for
banquet events at the Hyatt Regency Greenwich. The service
charge is normally 23% of the food and beverage and room
rental charges, though there are some variations. For
example, some customers have negotiated a different service
charge percentage, such as 21% or 22% . . . . The service
charge is not optional for customers; rather, the service
charge is a mandatory term of the banquet contract, agreed to
in advance by Hyatt and its customers.”) (citing Sample
Contract, dated Feb. 17, 2016, annexed as Ex. A, ECF No.
point to applicable federal and state guidance indicating
that service charges may be used to satisfy minimum wage
obligations. Defs.' Mem. at 4 (“The service charge
is not optional for customers; rather, it is mandatory. The
service charge is then included in the hotel's gross
receipts. The distribution from service charges therefore are
not tips, so they may be counted toward minimum wage.”)
(citing 29 C.F.R. § 531.55(b) and Conn. Dep't of
Labor, Gratuities in the Restaurant Industry,
therefore argue that they have paid Plaintiffs “through
a combination of hourly wages (currently $5.35 per hour) and
distributions from the mandatory service charges from banquet
events at which they are employed as banquet servers.”
Defs.' SMF ¶ 4. This results, they contend, in a
“regular rate of pay for each Plaintiff in every
workweek in excess of $7.25 per hour through December 9,
2017.” Id. ¶ 5. They therefore contend
that they are not only in full compliance with their
obligations to pay minimum wage, but almost always exceed it.
Id. ¶ 4. Thus, Defendants argue that
“[b]ecause the undisputed evidence shows that
Plaintiffs were paid at least minimum wage and that the
banquet service charges they seek are not wages that are due
to them, ” they are entitled to summary judgment on
Plaintiffs' FLSA claims. Defs.' Mem. at 1-2. They
further contend that Plaintiffs have no claim under
Connecticut law “because they cannot show that Hyatt
failed to pay them the wages that it agreed to pay them under
the applicable agreement or point to any source giving rise
to their entitlement to the portion of the service charges
that were retained by Hyatt or paid to banquet
captains.” Id. at 2.
February 5, 2016, Edgar Benavidez, Ali Kazi, Marvin
Castaneda, Ivan Peralta-Cabrera, Luis Victoria, Patrick
Desrosiers, Rocio Ribeiro, and Douglas Molina (collectively,
the “originally-named Plaintiffs”) sued
Defendants for failure to pay a minimum wage in violation of
the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 201 et seq., and for diversion of portions of
their tips and gratuities in violation of Connecticut Wage
Payment Law § 31-71e. See Complaint, dated Feb.
5, 2016 (“Compl.”), ECF No. 1, ¶¶
March 14, 2016, Defendants answered, asserting three
affirmative defenses: (1) that they acted in good faith and
had reasonable grounds for believing that they were in good
faith compliance with the FLSA and Connecticut Wage Payment
Law; (2) that Plaintiffs' claims and those of potential
collective members were barred by applicable statutes; and
(3) that Plaintiffs' claims and those of potential
collective members were barred, in whole or in part, by
statutory exclusions, exceptions, setoffs, or credits under