The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Plaintiffs Freddy Gonzales Arencibia, Hamid Guerch, Khalid Chabar,
Carlos E. Parra, and Wilson Martinez ("Plaintiffs"),*fn1
filed this action alleging violations of the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., the District of
Columbia Minimum Wage Act ("DCMWA"), D.C. Code §§ 32-1001 et seq., and
the District of Columbia Wage Payment and Collection Law ("DCWPCL"),
D.C. Code §§ 32-1301 et seq. Defendants are 2401 Restaurant
Corporation d/b/a/ Marcel's Restaurant ("Marcel's"), and the owner of
Marcel's, Chef Robert Wiedmaier. Before the Court is Defendants' 
Motion for Summary Judgment. Plaintiffs filed a  Memorandum in
Opposition ("Pl.'s Opp'n"), and Defendants filed a  Reply. After
considering the parties' briefs, the accompanying exhibits, and the
applicable authorities, for the reasons explained below, Defendants'
Motion for Summary Judgment is GRANTED.
Before addressing the relevant factual background, the Court finds it is helpful to outline the claims that remain at issue in the case. The first claim for relief in the Amended Complaint alleges violations of the FLSA, specifically: (1) failure to pay proper wages and overtime compensation; (2) inaccurate record keeping regarding the tip pool; (3) lack of transparency in the tip pool; (4) removal of tips from the pool by management; and (5) improper inclusion of a management employee in the tip pool. Am. Compl. ¶¶ 65-69. The first claim further alleges that Defendants "retaliated against Plaintiff Arencibia when he sought to enforce his rights under the FLSA," by terminating him, and contesting Arencibia's eligibility for unemployment benefits. Id. at ¶¶ 72-73. The second claim for relief alleges violations of DC Code § 32-1003(c) for failing to properly pay overtime compensation. Id. at ¶ 75. The third claim for relief alleges Defendants violated the DCWPCL by (1) failing to pay all wages due within ten working days; and (2) if there is a bona fide dispute as to wages, failing to give written notice of the amount of wages conceded to be due and any deductions made. Id. at ¶¶ 82-83. The Amended Complaint also included claims for violations of the District of Columbia Human Rights Act, which were dismissed by the Court. 03/31/2010 Order, ECF No. . The Court also dismissed the DCWPCL claim against Defendant Chef Wiedmaier. Id.
Defendants moved for summary judgment on all remaining claims. Plaintiffs concede that they lack sufficient evidence to support their overtime claims. Pls.' Opp'n at 1. Therefore Defendants are entitled to summary judgment on the overtime component of the first claim for relief and the entirety of the second claim for relief. As to the first claim for relief, Plaintiffs concede the only remaining disputes concern (1) documentation of tip calculation: (2) record keeping for the tip pool; and (3) the participation of certain employees in the tip pool; and (4) Arencibia's retaliation claim. Plaintiffs further state that the only remaining issue under the third claim for relief is the remedy available under the DCWPCL, should the Court find the tip pool was improperly administered. Id. As explained below, based on the record and arguments presented to the Court, the Court finds the tip pool was properly administered by Defendants, and thus the Court does not reach this issue. Accordingly, the only issues remaining for the Court to resolve are Plaintiffs' three challenges to the tip pool articulated above, and Plaintiff Arencibia's retaliatory discharge claim.
Defendant's Reply raises two evidentiary issues. First, Defendants protest Plaintiffs' lack of compliance with the requirements of Local Civil Rule 7(h) in responding to Defendants' Statement of Facts. The Court strictly adheres to the text of Local Civil Rule 7(h) (formerly Rule 56.1) when resolving motions for summary judgment. See Burke v. Gould, 286 F.3d 513, 519 (D.C. Cir. 2002) (finding that district courts must invoke the local rule before applying it to the case). The Court has advised the parties that it strictly adheres to Rule 7(h) and has stated that it "assumes facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion."  Scheduling and Procedures Order at 5 (Jan. 8, 2010). The Court agrees that Plaintiffs' Response is inadequate in many regards. Plaintiffs often fail to cite any evidence in the record to support their claim of a factual dispute (see Resp. Stmt. ¶¶ 19, 26, 47, 100, 119) and in many cases cite to entire depositions rather specific excerpts (see id. at ¶¶ 18, 23, 41-42, 127- 29). Perhaps most troubling are the cites to 60 page spans of Plaintiff Arencibia's deposition that contain no mention of the issue purportedly "disputed" by Plaintiffs' evidence. See id. at ¶¶ 108, 109, 112, 113, 114, 120. It is Plaintiffs' duty to identify, not the Court's, specific facts that raise a triable issue in order to defeat summary judgment. Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988). To be fair, Defendants do not follow the letter of Rule 7(h) by including facially disputed facts as undisputed. See Defs.' Stmt. at ¶¶ 65, 67. Ultimately the Court need not rule on the specific errors identified in Defendants' Reply, and will simply refer to Defendants' Statement where Plaintiffs' Response does not rise to the level of a genuine dispute.
Second, Defendants ask the Court to strike the Affidavit of Robert Almaraz (Pls.' Ex. B) on the basis that Mr. Almaraz was not disclosed as a potential witness during discovery. Defs.' Reply at 2. The Court notes Mr. Almaraz was mentioned by Plaintiff Arencibia during his deposition (Arencibia Dep. 96:16-25), but was not otherwise disclosed during discovery. See Arencibia Dep. Ex. 2 (Pls.' Resp. to Defs.' First Set of Interrogatories). The Court is inclined to agree with Defendants, but since Mr. Almaraz's Affidavit does not create a genuine dispute as to any material fact, it is not necessary for the Court to formally strike the Affidavit.
Marcel's is a fine dining restaurant located in Washington, D.C. Defs.' Stmt. ¶ 1. Plaintiffs were employed by Marcel's at various times between October 2002 and September 2008.*fn2 Id. at ¶¶ 3-13. Plaintiff Arencibia worked as a server, or "Captain," at an hourly rate of $2.77 plus tips. Id. at ¶¶ 4, 15. Plaintiffs Guerch, Parra, and Chabar worked as bussers, or "Service Attendants," at an hourly rate of $6.15 plus tips. Id. at ¶¶ 8, 10, 12, 16. Opt-in Plaintiff Martinez worked as a food runner at an hourly rate of $12.00 plus tips. Id. at ¶¶ 13, 17. Defendant Chef Wiedmaier is the principal owner of Marcel's. Id. at ¶ 2.
1. Basic Operation of the Restaurant
Throughout the relevant time frame, the managerial staff for each shift at Marcel's was typically composed of the Executive Chef de Cuisine, one Executive Sous Chef, and one Wine Sommelier, all of whom had the authority to hire, fire, and discipline employees. Defs.' Stmt. ¶¶ 21-22, 25. Prior to April 2007, Thomas Burke, the General Manager and Director of Operations, and Chef Wiedmaier were generally present at the restaurant during the afternoon and evening. Id. at ¶¶ 18, 26. Starting in late April 2007, Chef Wiedmaier was present at least two afternoons and evenings per week. Id. at ¶ 28. The parties dispute how often Mr. Burke was present after April 2007. Resp. Stmt. ¶ 27. During each shift, the service staff was generally composed of the Maitre d' Adnane Keiblar, at least four Captains, four bussers, one food runner, and one bartender, though there could be as many as seven captains, five bussers, two food runners, and two bartenders present on any given evening. Defs.' Stmt. ¶¶ 29-30.
a. Responsibilities of the Maitre d'.
Adnane Kebaier is the Maitre d' at Marcel's. Defs.' Stmt. ¶ 36. During the relevant time period, Mr. Kabier earned $8 per hour in addition to sharing in the tip pool with the other service staff, and did not have any ownership interest in Marcel's. Id. at ¶¶ 54-55. In addition to assisting the Captains with their duties, Mr. Kebaier is responsible for organizing reservations, supervising the floor, ensuring the staffs' uniforms are clean, and generally accommodating the requests of guests, including seeing that "regulars" are seated at the tables they request. Id. at ¶ 36. Mr. Kebaier is responsible for two regular tables (sometimes up to four), and for waiting on specific patrons when they come into the restaurant. Id. at ¶ 38. He also directs food runners and bussers. Id. at ¶ 39. Though Plaintiffs "dispute" Mr. Kebaier's authority (see id. at ¶¶ 41-47), the record reveals there is no genuine dispute that Mr. Kebaier did not have the authority to hire, fire, suspend, or discipline employees. Plaintiffs argue that Mr. Kebaier "held himself out as hiring" the Plaintiffs and was "directly involved" with hiring employees. Even if true, this has no bearing on whether Mr. Kebaier actually had the authority to hire or fire employees. On that front, Plaintiffs argue that Mr. Kebaier must have had that authority as he interviewed and immediately hired Plaintiffs Chabar and Parra. The record indicates otherwise. Mr. Chabar testified that he filled out an application, and was later called by Mr. Kebaier who told Mr. Chabar he was hired. Defs.' Stmt. ¶ 59; Chabar Dep. 28:4-29:13. Mr. Kebaier testified that after speaking with Mr. Chabar, he took the application to Mr. Burke, who approved the hire. Defs.' Stmt. ¶ 60. Mr. Kebaier testified-and Plaintiffs do not dispute it in the Statement of Material Facts-that Mr. Kebaier did not hire Mr. Parra. Resp. Stmt. ¶ 61. Plaintiffs cite to no evidence in the record to indicate Mr. Kebaier in fact has the authority to hire employees without prior approval.
Plaintiffs further argue that Mr. Kebaier has the authority to discipline employees because he purportedly suspended Plaintiff Arencibia for being late on September 11, 2008, and later lifted Mr. Arencibia's suspension. Pls.' Opp'n at 45. First, it is important to note that the Plaintiffs' Opposition confuses Mr. Arencibia's discipline history. Mr. Arencibia was told not to come in on September 11, 2008 when he telephoned the restaurant to indicate he was running 15 minutes late. Resp. Stmt. ¶ 160. Arencibia was not suspended at that time. In fact, Mr. Arencibia came into work the following day. Id. at ¶ 161. Mr. Arencibia was suspended in October 2007 over his alleged failure to serve a table with the amuse bouche. Defs.' Stmt. ¶ 144. However, Plaintiffs concede Arencibia was sent home by Chef Wiedmaier, and admit Mr. Kebaier said he needed approval from the Chef to lift Mr. Wiedmaier's suspension. Resp. Stmt. ¶ 144; Arencibia Dep. Ex. 13 (Arencibia's Appeal of Denial of Unemployment Benefits) at 2. Thus there is no evidence in the record to raise a genuine issue of material fact as to Mr. Kebaier's lack of authority to discipline employees. Plaintiffs also argue that Mr. Kebaier fired Plaintiffs Guerch and Chabar. However, Mr. Chabar testified that it was Ramon Narvaez who suspended him and sent him home, and he did not speak to Mr. Kebaier. Chabar Dep. 56:12-57:6. Mr. Kebaier likewise testified that it was Mr. Narvaez who sent Chabar home. Kebaier Dep. 33:3-34:4. Mr. Guerch, Mr. Stearman, and Mr. Kebaier did offer conflicting deposition testimony as to the events surrounding Mr. Guerch's termination. See Defs.' Stmt. ¶ 65. Guerch testified that Mr. Kebaier fired him after Guerch repeatedly asked to take a day off from work for the last day of Ramadan. Guerch Dep. 53:6-54:1. Mr. Kebaier testified that Guerch simply came in before his shift one day and resigned. Kebaier Dep. 36:20-37:12. Mr. Stearman and Mr. Narvaez also contend Guerch came into the restaurant and quit. Stearman Decl. ¶¶ 5-7 & Ex. A; Narvaez Decl. ¶¶ 9-11 & Ex. B.
Mr. Burke was personally responsible for the schedule for most of the relevant period-until May 2007. Resp. Stmt. ¶ 49. After May 2007, Mr. Kebaier took over for Mr. Burke in drafting the work schedule for the service staff. Id. at ¶¶ 48-49. Mr. Kebaier drafts an initial version of the schedule based on the standard work schedule (such as regularly scheduled days off), advance reservations, and historical averages. Id. at ¶ 50. Mr. Burke must approve the final schedule, though Plaintiffs dispute whether Mr. Burke's approval is required for all requests to take non-regularly scheduled days off, or whether Mr. Kebaier's could unilaterally deny such requests. Resp. Stmt. ¶ 51. Mr. Kebaier is not involved in determining hourly wages for employees, nor did he design or implement the tip pool system. Defs.' Stmt. ¶¶ 52-53.
b. Responsibilities of the Director of Sales.
Ms. Julie Albert works as the Director of Sales for Marcel's. Defs.' Stmt. ¶ 113. In this position, she is responsible for selling, booking, and planning private events at the restaurant, including negotiating the price, collecting the deposit and final payment, discussing the menu, and often attending the event. Id. Ms. Albert does not supervise any employees, has no ownership interest in Marcel's, and has no authority to hire, fire, or discipline employees. Id. All private events are charged a 20% service fee. Id. at ¶ 114. This service fee is comprised of a 3% commission for Ms. Albert, and 17% gratuity for the service staff. Id.
c. Responsibilities of the Captains.
Captains greet guests and take their coats, answer the telephone, escort guests to their tables, provide menus and explain the food. Defs.' Stmt. ¶ 31. Captains are also responsible for taking food and beverage orders, entering orders into the computer, opening wine, serving food and drinks, changing silverware, delivering the check and processing payments. Id. Generally they are responsible for ensuring a smooth service and seeing that all of the guests' needs are met. Id. Each captain is assigned specific tables, but all tables are considered the responsibility of the entire service staff. Id. at ¶ 32. Captains may instruct food runners and bussers as necessary, but have no authority to hire, fire, or discipline staff members. Id. at ¶ 33.
d. Responsibilities of the Bussers and Food Runners.
Bussers bring water to the tables and ensure it remains full, serve bread to the tables, pick up plates and clean the tables. Defs.' Stmt. ¶ 35. Bussers also move tables and chairs as needed, change tablecloths, bring wine from the cellar, refill freezers, notify the Captains of any issues and generally help Captains and food runners with whatever is needed during service. Id. Food runners are responsible for ensuring plates are polished, picking up plates from the table, and notifying the Chef when the table is ready for the next course. Id. at ¶ 34. Food runners also take the food from the kitchen to a tray by the table, and inform the Captains that the food is ready to be served to the patrons. Id.
2. Hiring and Termination of Plaintiffs
At all relevant times, Thomas Burke was the general manager and director of operations for Marcel's. Defs.' Stmt. ¶¶ 18, 20. Mr. Burke's job responsibilities include hiring, firing, disciplining employees, dealing with emergency calls, overseeing workers' compensation claims, and supervising the Maitre d', Sommelier, and kitchen staff. Id. at ¶ 19. Mr. Burke, the Executive Chefs de Cuisine, and Chef Wiedmaier have the authority to hire, fire, or discipline employees. Id. at ¶ 21. The Executive Sous ...