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Alison Scott, Individually and On Behalf of All Other Persons Similarly Situated v. Ssp America

March 29, 2011


The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.


In this putative class action, Plaintiff Alison Scott ("Plaintiff") asserts claims under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and New York Labor Law §§ 650 et seq., on behalf of herself and all others similarly situated, against SSP America, Inc. ("Defendant") for unpaid wages and overtime compensation. On August 26, 2010, Defendant moved for summary judgment as to all of Plaintiff's claims. For the reasons set forth below, Defendant's motion is GRANTED in its entirety.


Defendant is a provider of food and beverage services in travel locations, offering full service restaurants, cafes, bars, bakeries, and branded fast food outlets ("Units"). (Def.'s 56.1 Stmt. ¶ 1.) During the time period relevant to this case, Defendant had between thirteen and seventeen Units in Terminal 4 of JFK International Airport ("JFK"), the terminal in which Plaintiff worked. (Id. ¶ 3.)*fn2 Each Unit is a separate business operation. (Id. ¶ 4.) Defendant's operation at JFK is organized according to the following corporate hierarchy: each Unit is assigned various unionized employees, who are paid by the hour ("hourly employees"), one or more Assistant Managers, who are paid by salary, and one Unit Manager, who also receives a salary. (Id. ¶¶ 5--7, 45.) The hourly employees include line cooks, cashiers, servers, porters, and bartenders, and "hourly supervisors" in each of these disciplines, and all are supervised by the Unit Manager and Assistant Managers. (Id. ¶ 45.) The hourly employees, including hourly supervisors, are the only employees within this hierarchy who are eligible for overtime compensation. The Unit Manager is also responsible for supervising Assistant Managers, and reports both to the Operations Manager and the General Manager. (Id. ¶¶ 5--7.) The Operations Manager reports to the General Manager, who is the most senior manager in the relevant portion of Defendant's corporate structure. (Id.)

Plaintiff began working for Defendant on February 19, 2007. (Id. ¶ 9.) Plaintiff was initially hired as an Assistant Manager, and assigned to the Sam Adams and Bar Avion Units at a time when no Unit Manager was responsible for either Unit. (Id. ¶ 10.) In late 2007, Defendant promoted Plaintiff to Unit Manager and gave her responsibility for the Bar Avion and Shannon's Units on the east side of Terminal 4 at JFK. (Id. ¶ 11.) Plaintiff then moved to the Sam Adams, Brooklyn Brewery, B23 and B27 Units, where she worked as the sole Unit Manager with at least two Assistant Managers. (Id. ¶ 12.)

In the summer of 2008, Plaintiff decided to take an Assistant Manager position for personal reasons for a brief period of time, and worked at the Brooklyn Brewery, B27 and B23 Units. (Id. ¶¶ 13--14.) Plaintiff's responsibilities remained largely the same and her salary was not reduced; however, Plaintiff reported to a Unit Manager and no longer prepared the employees' schedules. (Id. ¶ 15.) In April 2009, Plaintiff was made Unit Manager for Panda Express, and was sent on a week-long training session in Boston, Massachusetts to learn about the Panda Express franchise. (Id. ¶¶ 16--17.) Plaintiff held this position until July 30, 2009, when she resigned from her employment with Defendant. (Id. ¶ 18.)

When Plaintiff began working for Defendant, her starting salary was $38,000. (Id. ¶ 19.) She received a raise to $43,000 in March 2008. (Id. ¶ 20.) Plaintiff's salary was never reduced during her tenure with Defendant, and she was eligible to receive bonuses of up to 15% to 20% of her salary. (Id. ¶¶ 21--22.) Plaintiff received health benefits different from those offered to hourly employees. (Id. ¶¶ 22--23.)

1. Plaintiff's Responsibilities as Unit Manager

In this action, Plaintiff challenges her compensation as a Unit Manager. In that capacity, Plaintiff supervised as many as four Units at one time. (Id. ¶ 12.) Plaintiff testified that she was responsible as a Unit Manager for the following: (1) ensuring that food and drink stocks were full, (2) meeting the budget or surpassing it, (3) making sure the Unit was clean, (4) handling in-person guest complaints, (5) ensuring that hourly employees were clocking in and out, and (6) checking staffing levels. (Id. ¶ 25.) Plaintiff also created the employee work schedule with the help of a computer program. (Def.'s 56.1 Stmt. ¶ 26; Pl.'s 56.1 Cntrstmt. ¶ 26.) She testified that she "plugged" the names of hourly employees into the computer program, which auto-generated a schedule. (Pl.'s 56.1 Cntrstmt. ¶ 61.) She had neither the authority to determine the number of employees who would work each week, nor the power to change the schedules she created with the computer program. (Id. ¶ 26.) Plaintiff once complained to the General Manager that she was dismayed because the General Manager had asked someone else to create the schedule, which was Plaintiff's responsibility, and that she would "not feel as if this business belongs to [her] if other people has to [sic] do [her] job nor [would she] be focused on it if everything is taken away from me." (Def.'s 56.1 Stmt. ¶ 39.) Before the responsibility for vacation requests was given to the human resources department, Plaintiff had the authority to grant or deny the vacation requests of hourly employees. (Id. ¶ 63.)

Plaintiff testified that her most important managerial "task" was "[i]ncreasing profitability," but that she could not identify her most important "role" as a manager because she "spent so much of [her] time in an hourly position." (Def.'s 56.1 Stmt. ¶ 27; Pl.'s 56.1 Cntrstmt. ¶ 27.) By instructing the hourly employees to up-sell*fn3 and "controlling the voids,"*fn4 Plaintiff was able to increase the profitability of her Units and avoid waste. (Def.'s 56.1 Stmt. ¶ 28.) Plaintiff also had the authority to ask for volunteers to go home when the Unit was overstaffed, but she could not order an hourly employee to stop working. (Def.'s 56.1 Stmt. ¶ 29--30; Pl.'s 56.1 Cntrstmt. ¶ 29--30.)

Plaintiff was responsible for tracking her Units' inventories. (Def.'s 56.1 Stmt. ¶ 33.) On a daily basis, Plaintiff ordered food and drink from a storeroom located in the airport, using historical business volume averages and her own familiarity with her Units to order the optimal amount of replacement goods. (Def.'s 56.1 Stmt. ¶ 31--32; Pl.'s 56.1 Cntrstmt. ¶ 31--32.) Plaintiff also enforced corporate regulations regarding portion and food control in the kitchen and bar area. (Def.'s 56.1 Stmt. ¶ 34; Pl.'s 56.1 Cntrstmt. ¶ 34.) Plaintiff did not have the authority to change the kinds of food served in her Units, or to change food prices. (Pl. Dep. at 258.)

Each day, Plaintiff and the other Unit Managers attended a "huddle." (Def.'s 56.1 Stmt. ¶35.) It was permissible for hourly employees to attend the daily huddle if no Unit Managers were available. (Pl.'s 56.1 Cntrstmt. ¶ 35.) During these fifteen-to-thirty minute huddles, managers would discuss daily expectations and potential weather disruptions, which could cause flight delays, flight cancellations, and fluctuations in business volume. (Def.'s 56.1 Stmt. ¶ 36.) Plaintiff also attended weekly, multi-hour managers' meetings, at which she learned about the operations of the business. (Id. ¶ 37.)

The Operations Manager supervised Plaintiff by periodically sending her e-mails, calling her on the phone, and meeting her face-to-face while walking through the various Units. (Kobrynich Dep. at 27--28.) Plaintiff had access to several computers in the Units through which she could send and receive e-mails to and from her supervisors. (Scott Dep. at 66.) The General Manager walked around the Units for sixty percent of her time at work. (Kobrynich 24.) The Operations Manager also walked around the Units eighty percent of the time. (Id. at 19--20.) The Operations and General Managers walked through fourteen-to-eighteen Units in two separate airport terminals. (Id. at 16--17.) Plaintiff testified that both the General and Operations Managers had an "open door" policy, and that their offices were located in the same airport terminal in which Plaintiff worked. (Scott Dep. at 65--66.)

When she was taking over a shift, Plaintiff would hold a pre-shift meeting, wherein she would remind the hourly employees of company standards, including the importance of up-selling and customer friendliness. (Def.'s 56.1 Stmt. ¶ 40; Pl.'s 56.1 Cntrstmt. ¶ 40.) Plaintiff also held meetings with her subordinates in which she discussed issues such as "[c]leanliness, overall feedback, and ideas to put on whatever needs to be done to enhance the business." (Def.'s 56.1 Stmt. ¶ 41; Pl.'s 56.1 Cntrstmt. ¶ 41.) Plaintiff was responsible for making sure that her staff adhered to company standards, as well as administrative health and safety requirements. (Def.'s 56.1 Stmt. ¶ 42.) Plaintiff strictly enforced these rules and made certain that the hourly employees were properly performing their jobs. (Id. ¶ 43.) Plaintiff was responsible for informing the hourly employees of their job expectations, and she coached them when they failed to meet these expectations. (Id. ¶ 44.) She also supervised Assistant Managers, and delegated work to them. (Id. ¶ 46.) Plaintiff completed a performance review of at least one Assistant Manager, and she provided other employees with both oral and written instructions. (Id. ¶ 47.)

Plaintiff believed that it was necessary to have a manager in the Unit at all times to deal with any issues that arose, and that not having a manager present would compromise Defendant's operations. (Id. ¶ 49.) She could void mistakes made by cashiers and provide disgruntled customers with free meals or drinks. (Id. ¶ 50.) Plaintiff also made sure that her Units were adequately staffed to deal with anticipated business volume, and she often adjusted staff levels in accordance with flight schedules. (Id. ¶ 62.) She also had the authority to ask employees to come to work when her Units were understaffed or to ask them to fill in for hourly employees who were approaching the overtime threshold. (Id. ¶¶ 64--65.) Before allowing an employee to work overtime, however, Plaintiff would have to get the General Manager's approval. (Id. ¶ 65.)

Plaintiff disciplined hourly employees without the need for supervisory approval, and in one case she disciplined an Assistant Manager without the advance approval of the General Manager. (Id. ¶¶ 52--53; Pl.'s 56.1 Cntrstmt. ¶¶ 52--53.) Normally, however, Plaintiff needed the General Manager's approval before disciplining an Assistant Manager. (Pl.'s 56.1 Cntrstmt. ¶ 52.) Defendant had a progressive disciplinary system, whereby employees would receive verbal, written, and final warnings, which provided the just cause for termination required by the hourly employees' collective bargaining agreement. (Def.'s 56.1 Stmt. ¶ 54.) Plaintiff would memorialize employee discipline in counseling forms, which stated the basis for the discipline and whether it was a verbal, written, or final warning. (Id. ¶ 55.) Plaintiff also had the authority to suspend employees, but she needed the prior approval of either the Operations or General Managers, except under unusual or dangerous circumstances. (Def.'s 56.1 Stmt. ¶¶ 56--59; Pl.'s 56.1 Cntrstmt. ¶¶ 56--59.) According to the hourly employees' collective bargaining agreement, suspension with intent to terminate was the most severe action that management could take against a union employee prior to an investigation with union involvement. (Def.'s 56.1 Stmt. ¶ 60.) Plaintiff believed that managers, such as herself, and hourly employees should never socialize because friendships could make it difficult for managers to discipline hourly employees. (Id. ¶ 48.)

Plaintiff's own testimony as to whether she interviewed and hired employees was inconsistent. First, when asked if she hired one employee, Plaintiff answered, "I believe I interviewed her, yes." (Def.'s 56.1 Stmt. ¶ 66.) Later, Plaintiff testified that she never engaged in interviews. (Id.) Plaintiff also testified that she did not directly hire employees, but that, rather, she would request additional employees from the human resources department, which was responsible for the actual hiring of employees. (Id. ¶ 67; Pl.'s 56.1 Cntrstmt. ¶ 67.)*fn5 Plaintiff also recommended individuals for promotion, but did not have the authority to award promotions. (Def.'s 56.1 Stmt. ¶ 71; Pl.'s 56.1 Cntrstmt. ¶ 71.) Plaintiff's supervisor testified that at least three individuals were hired based on Plaintiff's recommendations. (Id.) Plaintiff also conducted performance reviews of Assistant Managers, which were considered as part of pay raise determinations. (Def.'s 56.1 Stmt. ¶ 72.)

When the airport was crowded or an employee did not report for a scheduled shift, Plaintiff would have to fill in for that employee and perform manual tasks, such as cooking, cleaning, and working the cash register. (Id. ¶ 75.) No one scheduled or directed Plaintiff to perform such work. (Id. ¶ 76; Pl.'s 56.1 Cntrstmt. ¶ 76.) She testified that she spent approximately 90% of her time performing the work of hourly employees because her Units were often short-staffed. *fn6 (Pl.'s 56.1 Cntrstmt. ¶ 76.) No one directly supervised Plaintiff's performance while she performed manual tasks, but she was always subject to the general supervision of the Operations and General Managers. (Def.'s 56.1 Stmt. ¶ 77; Pl.'s 56.1 Cntrstmt. ¶ 77.) Plaintiff acknowledged that she would have to stop performing such manual tasks in one Unit in order to check on her other Units. (Def.'s 56.1 Stmt. ¶ 78; Pl.'s 56.1 Cntrstmt. ¶ 78.) Plaintiff testified that even when she was performing manual tasks, she continued to supervise the staff: as she explained, she would "multi task." (Def.'s 56.1 Stmt. ¶ 80.) The collective bargaining agreement provided that managers could perform the work of hourly employees only for "short interval meal period customer surges." (Id.)

Plaintiff was eligible for a bonus, which depended, in part, on the success of her Units. (Def.'s 56.1 Stmt. ¶ 86; Pl.'s 56.1 Cntrstmt. ¶ 86.) Plaintiff was held accountable when her Units failed to comply with company standards and administrative regulations. (Def.'s 56.1 Stmt. ¶ 87.) In one case, Panda Express failed an inspection and the General Manager required Plaintiff to come in on her day off and to develop an action plan to remedy the problem. (Id. ¶¶ 87--88.)

Indeed, Plaintiff held herself accountable for failing the inspection. (Id. ¶ 88.) On July 30, 2009, Plaintiff received a write-up because a cook in one of her Units was using a product that did not meet quality standards, and her Unit failed to meet company standards of cleanliness. (Id. ¶ 89.) Plaintiff refused to sign the ...

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