United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
F. Cox United States District Court
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.
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.
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.
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),
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).
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.”).
following material facts are gleaned from the evidence
submitted by the parties, viewed in the light most favorable
to Plaintiffs, the non-moving parties.
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).
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.
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).
testified that he was involved in interviewing and hiring
employees and that was done “as a group in the
office.” (Rummal Dep. at 35).
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).
worked for Defendant from April, 2014 until September, 2015.
(Def.'s Stmt. & Pls.' Stmt. at ¶ 3). She
worked at three different restaurants.
testified that Ristovski did not have the authority to hire
or fire employees, but could make recommendations to the
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).
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)
Ristovski's recommendations for giving kitchen staff
raises were adopted. (Ristovski Affidavit at ¶ 10).
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).
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).
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).
& 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).
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).
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
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).
his hiring, Sullivan testified:
Q. And how is it that you came to MCE?
A. I was essentially offered the job by Elizabeth
Q. And you were convinced she had the authority to hire and
A. Yes, via my understanding of the situation.
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?
Q. And she said, I can get you in?
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
Q. - as you sit here today.
(Sullivan Dep. at 12-13).
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 ...