Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ristovski v. Midfield Concession Enterprises, Inc.

United States District Court, E.D. Michigan, Southern Division

August 22, 2017

Elizabeth Ristovski, et al., Plaintiffs,
v.
Midfield Concession Enterprises, Inc., Defendant.

          OPINION & ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          Sean F. Cox United States District Court

         Plaintiffs are three individuals who were previously employed by Defendant at its various restaurants at Detroit Metropolitan Airport. They brought this action against Defendant, alleging that Defendant violated the Fair Labor Standards Act. Specifically, they allege that they were not exempt from the overtime provisions of the Act but that Defendant nevertheless failed to pay them overtime wages for all time worked in excess of forty hours per week. The matter is currently before the Court on Defendant's Motion for Summary Judgment. The parties have briefed the issues and the Court heard oral argument on August 10, 2017.

         As explained below, the Court shall DENY the motion because genuine issues of fact exist as to whether Defendant can avail itself of the executive exception.

         BACKGROUND

         Plaintiffs Elizabeth Ristovski, Brett Sullivan, and Abbas Abbas (collectively “Plaintiffs”) filed this action against Defendant Midfield Concession Enterprises, Inc. (“Defendant”) on August 18, 2016. Plaintiffs made a jury demand. Plaintiffs allege that Defendant violated the federal Fair Labor Standards Act, 29 U.S.C. § 201 et seq. Plaintiffs allege that they were not exempt from the overtime provisions of the Act but that Defendant nevertheless failed to pay them overtime wages for all time worked in excess of forty hours per week.

         Following the close of discovery, Defendant filed a Motion for Summary Judgment. This Court's practice guidelines, which are expressly included in the Scheduling Order issued in this case, provide, consistent with Fed.R.Civ.P. 56 (c) and (e), that:

a. The moving party's papers shall include a separate document entitled Statement of Material Facts Not in Dispute. The statement shall list in separately numbered paragraphs concise statements of each undisputed material fact, supported by appropriate citations to the record. . .
b. In response, the opposing party shall file a separate document entitled Counter-Statement of Disputed Facts. The counter-statement shall list in separately numbered paragraphs following the order or the movant's statement, whether each of the facts asserted by the moving party is admitted or denied and shall also be supported by appropriate citations to the record. The Counter-Statement shall also include, in a separate section, a list of each issue of material fact as to which it is contended there is a genuine issue for trial.
c. All material facts as set forth in the Statement of Material Facts Not in Dispute shall be deemed admitted unless controverted in the Counter-Statement of Disputed Facts.

(Scheduling Order at 2-3).

         In compliance with this Court's guidelines, in support of its Motion for Summary Judgment, Defendant filed a “Statement of Material Facts Not In Dispute” (“Def.'s Stmt.”). In response to that submission, Plaintiffs filed a “Counter-Statement of Disputed Facts” (“Pls.' Stmt.”).

         The following material facts are gleaned from the evidence submitted by the parties, viewed in the light most favorable to Plaintiffs, the non-moving parties.

         Defendant is an airport concession company that owns and operates a number of restaurants and concession stores in ten airports across the country. (Def.'s Stmt. & Pls.' Stmt. at ¶ 1). Plaintiffs Ristovski, Sullivan, and Abbas were each employed at different restaurants operated by Defendant at Detroit Metropolitan Airport. (Id. at ¶ 2).

         At all relevant times, Dean Hachem has been Defendant's Chief Operating Officer. Marwan Wehbe has been Defendant's Regional Operations Manager. (Wehbe Dep. at 8-9). Chef Rudy Rummal is also a manager who oversees Defendant's properties at the airport. (Id. at 12; Hachem Dep. at 15-17).

         Hachem testified that are three upper-level managers (Wehbe, Brian Henson, and Rummal), that he refers to as the “management team” in Detroit. Hachem testified that those three men, along with Hachem and Defendant's HR department, make the decisions regarding the hiring and firing of employees at Defendant's restaurants. (Hachem Dep. at 14-17 & 27). Hachem testified that he cannot recall any instance wherein someone other than those upper-level managers fired an employee. (Id. at 28).

         Rummal testified that he was involved in interviewing and hiring employees and that was done “as a group in the office.” (Rummal Dep. at 35).

         Defendant offered $50.00 to employees for each referral who was hired and stayed employed by the company for six months. (Ristovski Affidavit at ¶ 4). Hachem testified that all employees, including hourly employees, are encouraged to bring in employees through referrals:

Q. Has an hourly employee ever recommended an employee or referred an employee to be hired?
A. Hourly employees, they bring their friends and work in the kitchen, utility or bus boys or cooks. They bring employees. Everyone can bring employees to the company.
Q. Every employee can recommend an employee?
A. Yes, referrals.

(Hachem Dep. at 60).

         1. Ristovski

         Ristovski worked for Defendant from April, 2014 until September, 2015. (Def.'s Stmt. & Pls.' Stmt. at ¶ 3). She worked at three different restaurants.

         Rummal testified that Ristovski did not have the authority to hire or fire employees, but could make recommendations to the office:

Q. Would Miss Ristovski be in charge of hiring employees?
A. She was interviewing some employees, but normally the office have the last talk about hiring. She can tell I know X person, he is a cook and I want him to work with us and then she can interview him and Marwan interview him or Jeff or, you know, and then she will be involved with that, yes, but hiring is the office.
Q. Do you know any employees that she interviewed?
A. I know some of the dishwashers, two dishwashers and one busboy and other people, yes, cooks.
Q. Do you remember any of their names?
A. Mm-mm, no.
Q. Would Miss Ristovski be able to fire employees?
A. No, she can tell Marwan or any firing have to go by the office. The office will tell us we are in a good position to fire somebody or not.

(Rummal Dep. at 28-29).

         During that time period she was employed by Defendant, Ristovski estimates that approximately 100 to 150 employees were hired by the company. (Ristovski Affidavit). During her employment, Ristovski participated in only three employee interviews, including Shayne Dolby. (Ristovski Affidavit; Ristovski Dep. at 33). Ristovski recommend that Dolby not be hired, but that recommendation was not followed. (Ristovski Affidavit at ¶ 3; Ristovski. Dep. at 33). Ristovski recommended that Sullivan be hired and he was hired by Defendant. (Ristovski. Dep. at 34)

         None of Ristovski's recommendations for giving kitchen staff raises were adopted. (Ristovski Affidavit at ¶ 10).

         Ristovski was initially offered, and accepted, employment at Mediterranean Grill and her title was “Manager.” (Def.'s Stmt. & Pls.' Stmt. at ¶ 7; Def.'s Ex. 7). Her starting salary was $40, 000 per year. (Def.'s Stmt. & Pls.' Stmt. at ¶ 9; Def.'s Ex. 7).

         Ristovski testified that while at Mediterranean Grill, she did not supervise any employees and worked on the line “nonstop for six weeks.” (Ristovski Dep. at 40). Ristovski testified that she had keys to the restaurant and could open and lock the gate. (Id. at 41). She testified that she did not have keys to the manager's office at the restaurant but could go in there because the door was not locked. Ristovski collected the money from the waitresses at the end of the shift. (Ristovski. Dep. at 41). She did not order provisions at the restaurant, Rudy and Hassan did that. (Id. at 42). Ristovski testified that she did not work on schedules at this restaurant, and did not set the rates of compensation for employees. (Ristovski Dep. at 43). Unlike hourly employees or line cooks, Ristovski had the ability to void orders and give discounts to customers. (Def.'s Stmt. & Pls.' Stmt. at ¶ 16; Ristovski Dep at 86-87).

         After approximately six weeks, Ristovski was transferred to Max & Erma's, another restaurant operated by Defendant at the airport. (Def.'s Stmt. & Pls.' Stmt. at ¶ 10). She worked there for approximately seven to eight months. (Id. at ¶ 11).

         At Max & Erma's, Ristovski supervised four line cooks. (Def.'s Stmt. & Pls.' Stmt. at ¶ 13). Ristovski testified that she directed employees at that restaurant, showing them how to cook, how to keep things moving on the line, and how to make the ticket times better. (Ristovski Dep. at 39 & 44). Unlike hourly employees, Ristovski had a key to the restaurant. (Id. at 42). That restaurant had no manager's office. (Id. at 42). Rather, it had an area with a desk and computer, which Ristovski has access to. Ristovski had access to emails that were only accessible to managers. (Id. at 43).

         Ristovski testified that she did not work on schedules at Max & Erma's and did not set the rates of compensation for employees. (Ristovski Dep. at 43). Unlike hourly employees or line cooks, Ristovski had the ability to void orders and give discounts to customers. (Def.'s Stmt. & Pls.' Stmt. at ¶ 16; Ristovski Dep at 86-87).

         Ristovski worked at Andiamo for approximately three or four months. (Ristovski Dep. at 45). While at Andiamo, Ristovski supervised and directed the work of five or six employees. (Ristovski Dep. at 44; Def.'s Stmt. & Pls.' Stmt. at ¶ 17). Ristovski testified that she did not work on schedules at this restaurant, and did not set the rates of compensation for employees. (Id. at 43). Unlike hourly employees or line cooks, Ristovski had the ability to void orders and give discounts to customers. (Def.'s Stmt. & Pls.' Stmt. at ¶ 16; Ristovski Dep. at 86-87).

         2. Sullivan

         Sullivan worked for Defendant from June 17, 2015 through July 24, 2015. (Def.'s Stmt. & Pls.' Stmt. at ¶ 4). Sullivan was offered, and accepted, employment at Andiamo as an Assistant Kitchen Manager, at an annual salary of $36, 000. (Def.'s Stmt. & Pls.' Stmt. at ¶ 29).

         As to his hiring, Sullivan testified:

Q. And how is it that you came to MCE?
A. I was essentially offered the job by Elizabeth [Ristovski].
Q. And you were convinced she had the authority to hire and fire?
A. Yes, via my understanding of the situation.
Q. Okay.
A. I don't know if that was the actual facts of the matter. I believe Marwan and Rudy did the hiring.
Q. Did she reach out to you and say, hey, look, I want you to come work here?
A. Correct.
Q. And she said, I can get you in?
A. Correct.
Q. Okay. So whether she was making the final decision or not, she certainly could recommend your hire?
A. Yes, sir.
Q. And you don't know if she made the final decision or not --
A. Correct.
Q. - as you sit here today.
A. Correct.

(Sullivan Dep. at 12-13).

         Sullivan testified as follows, pertaining to the work he performed at Andiamo after he was hired:

Q. Okay. How would you - well, let me ask you this way. At MCE did you order food?
A. I did not.
Q. Did you order supplies?
A. I did not.
Q. Did you order ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.