OROZCO v. DARDEN RESTAURANTS, INC., No. X03 CV 04-4022118 S (Aug. 3, 2006)

JOHN J. LANGENBACH, JUDGE.

The plaintiffs, Amarilis Orozco and Linda Houkim, are two former servers in restaurants owned and operated by the defendant, Darden Restaurants, Inc. Orozco was employed by the Red Lobster restaurant in Wethersfield. Houkim worked at the Olive Garden restaurant in Manchester. The plaintiffs move for certification of one or more classes or subclasses alleging violations of the Connecticut Minimum Wage Act, General Statutes § 31-58, et seq. On behalf of themselves and the putative classes, the plaintiffs seek damages and injunctive relief. The defendant has opposed the plaintiffs' motion for class certification.

Pursuant to General Statutes § 31-60(b), the defendant is entitled to take a "tip credit" of 29.3% of the state minimum wage it pays to servers who customarily receive gratuities when certain regulatory conditions are met. The plaintiffs claim that the defendant failed to properly obtain signed weekly tip statements from the plaintiffs in violation of sections 31-62-E2(c) and 31-62-E3(c) of the Regulations of Connecticut State Agencies and failed to record as a separate item in the wage record the amount received by the plaintiffs in gratuities that the defendant claimed as a tip credit as required by section 31-62-E3(b) (the "notice claims"). The plaintiffs further allege that the defendant assigned non-service related duties to the plaintiffs in addition to their service duties but did not segregate the time spent performing the non-service duties nor pay for that time at the full minimum wage as required by section 31-62-E4 (the "sidework claim"). The plaintiffs seek certification of a class of all servers employed by all Darden restaurants in Connecticut from October 2002 to the present with respect to the notice claims, and certification of a class of servers employed only at the CT Page 14052 Wethersfield Red Lobster and the Manchester Olive Garden from October 2002 to the present with respect to the sidework claim.

The Practice Book rules set forth a two step process for determining whether an action or claim qualifies for class action status. Collins v. Anthem Health Plans, 275 Conn. 309, 322, 880 A.2d 106 (2005). The court must first decide whether the four prerequisites specified in Practice Book § 9-7 are satisfied. Id. "These prerequisites are: (1) numerosity — that the class is too numerous to make joinder of all members feasible; (2) commonality — that the members have similar claims of law and fact; (3) typicality — that the [representative] plaintiffs' claims are typical of the claims of the class; and (4) adequacy of representation — that the interests of the class are protected adequately." (Internal quotation marks omitted.) Id. If these criteria are satisfied, the court then must evaluate whether the requirements of Practice Book § 9-8 are satisfied. Id. "These requirements are: (1) predominance — that `questions of law or fact common to the members of the class predominate over any questions affecting only individual members;' and (2) superiority — that `a class action is superior to other available methods for the fair and efficient adjudication of the controversy.' " Id., quoting Practice Book § 9-8.

As in several other "tip credit" cases across the state, the issue of predominance is the focus of the parties' memoranda and arguments in this case. To determine whether common issues of law or fact predominate in a case, the court engages in a three part inquiry. Collins v. Anthem Health Plans, supra, 275 Conn. 331. "First, the court should review the elements of the causes of action that the plaintiffs seek to assert on behalf of the putative class . . . Second, the court should determine whether generalized evidence could be offered to prove those elements on a class-wide basis or whether individualized proof will be needed to establish each class member's entitlement to monetary or injunctive relief . . . Third, the court should weigh the common issues that are subject to generalized proof against the issues requiring individualized proof in order to determine which predominate." (Citations omitted.) Id., 332. "Only when the common issues of law or fact will be the object of most of the efforts of the litigants and the court will the predominance test be satisfied." (Internal quotation marks omitted.) Id.

Three superior court judges have denied motions for class CT Page 14053 certification in other "tip credit" cases filed by servers at various restaurant chains on the ground that they cannot meet the predominance requirement. See Galbreth v. Briad Restaurant Group, Superior Court, Complex Litigation Docket at Waterbury, Docket No. X02 CV 04 4000676 (November 29, 2005, Eveleigh, J.) (40 Conn. L. Rptr 402); Palmer v. Friendly Ice Cream Corp., Superior Court, Complex Litigation Docket at Tolland, Docket No. X07 CV 04 4001612 (January 25, 2006, Sferazza, J.); Bucchere v. Brinker International, Inc., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X01 CV 04 4000238 (June 6, 2006, Sheedy, J.) In all three cases, the court found that individualized issues regarding the nature of the duties the plaintiffs were required to perform at each of the restaurants and the extent to which each of the plaintiffs had to perform these duties during each of their shifts at the various restaurants predominated over issues that would require generalized proof. This case is no different.

In their third amended complaint, the plaintiffs allege that they were required to perform non-service related duties in addition to their service duties. These non-service duties included tasks such as cleaning and stocking of areas other than their immediate area of service, wrapping silverware, cleaning trays, preparing foods such as salads, coffee, soup, bread sticks and baked potatoes, plating and dressing entrees, processing "to-go" orders, and performing opening and closing tasks such as sweeping floors, dusting, filling salt and pepper shakers, stocking glasses, coffee cups and dishes, sorting silverware, cleaning coffee and soda machines, filling ice bins, emptying trash barrels, and cleaning and restocking refrigerator. (Third Amended Complaint, Count Three, ¶ 10E.) The plaintiffs claim that the defendant failed to segregate the time spent performing these non-service duties and pay for that time at the full minimum wage, as required by § 31-62-E4 of the Regulations of Connecticut State Agencies.

The plaintiffs claim all they will need to do to establish their prima facie case on this issue is to show (1) the plaintiffs worked for the defendant during the relevant time period, and (2) they were paid less than the minimum fair wage. The plaintiffs claim that the burden will then shift to the defendant to show that the plaintiffs fall within the exception to the minimum wage. The plaintiffs claim that both the Wethersfield Red Lobster and the Manchester Olive Garden restaurants maintained lists of sidework duties that each sewer CT Page 14054 must perform as part of their shifts. The plaintiffs claim that all of the duties on the sidework lists are non-service duties because they are performed away from the tables and boots and in other parts of the restaurants. The plaintiffs assert that the only analysis the court will need to undertake with respect to their sidework claim is a review of the sidework lists for each restaurant.

There is no definition in the statutes or regulations of "service duties" or "nonservice duties." A "service employee," as noted previously, is defined as an "employee whose duties relate solely to the serving of food and/or beverage to patrons seated at tables or booths, and to the performance of duties incidental to such service, and who customarily receives gratuities." Regs., Conn. State Agencies § 31-62-E2(c). It will be up to the court to determine what duties are related solely to the service of food and beverages or incidental to such service and what duties constitute "non-service" duties. Once the court determines what types of duties may be service or non-service duties, it will be necessary to assess the duties each server actually performed to determine whether those duties are service or non-service tasks. With respect to many duties, it will be necessary to consider not only the nature of the duty but the context in which the duty is performed in order to determine if it is a service or non-service duty. Further, it will be necessary to determine whether servers performed the sidework duties listed and whether they did so on each shift. From the deposition testimony of the restaurant managers, it appears that during some busy shifts, the sidework duties may be performed by other employees, and during some slower shifts, certain sidework duties may not be necessary. It also appears that at various times and during various shifts at each of the restaurants, additional employees such as bussers, alley coordinators or expediters, saladmakers, and a silverware roller were present and performed some or all of the duties appearing on the sidework lists.

Even if, as the plaintiffs claim, the burden is on the defendant to show that it was entitled to take the tip credit for each of the hours worked by the plaintiffs, the defendant will be entitled to do that by questioning the plaintiffs and offering individualized evidence regarding the nature of the sidework duties performed by each plaintiff and whether these sidework duties were performed by each plaintiff during each shift. As stated by the court in Bucchere v. Brinker International, Inc., supra, Superior Court, Docket No. X01 CV 04 4000238: "Counsel's CT Page 14055 planned presentation of evidence, while perhaps expeditious, ignores that there is no presumption of violation of the wage law with regard to any class member much less a presumption that there was a violation for all class members as to all hours worked." The court in Palmer v. Friendly Ice Cream Corp., supra, Superior Court, Docket No. X07 CV 04 4001612, summarized as follows: "Such individualized proof is especially important in this case because, at trial, the fact-finder may reject the plaintiffs' characterizations as non-service duty regarding some of the side tasks which the complaint labels as such. In other words, the trier of fact may determine that, while some of the side duties listed were non-service duties, some tasks are incidental to service duties. The fact-finder would need evidence as to each member of the class concerning what specific duties that member performed, and at what times, that required segregation before a tip credit was allowed." Accordingly, the court finds that extensive individualized inquiries will be necessary to establish both liability and the extent of the harm to each class member, so that common questions of law or fact do not predominate.

As to the notice claims, the plaintiffs also claim that all they have to show is that they worked and that they were paid less than the minimum wage, and then the burden shifts to the defendant to show that it falls within an exception to the minimum wage law. The plaintiffs claim that the regulations require a written, signed weekly statement and the defendants do not obtain or maintain such statements from the servers. The plaintiffs further claim that the defendant does not record the tip amounts on a weekly basis as a separate item in the wage record. The plaintiffs represent that they will prove their claims and negate the defendant's defenses by using one body of generalized proof: wage records, testimony of the defendant's director of payroll, and the absence of signed tip statements. The defendant argues that its "Compris" computer system can provide records of hours worked, sales amounts, and tip amounts entered by the servers with respect to every shift, and can generate reports that meet the requirements of the regulations. The defendant claims that each server has a personal identification number that they use to log in and out of the system and that the use of this personal identification number is an electronic signature by the server.

As an example of the defendant's alleged failure to comply with the notice regulations, the plaintiff points out a particular CT Page 14056 week in the plaintiff Orozco's wage records where a tip credit was taken but no tips were recorded. The plaintiffs presume that the defendant has violated the law in this situation because the defendant has not produced a written, signed tip statement from Orozco for that week stating that she received tips in an amount at least equal to the credit taken. It appears, however, from the deposition testimony of the defendant's director of payroll, that the amount of the tips received by the servers is entered into the Compris computer system by the servers. The defendant may, as it claims, be able to produce weekly records that comply with the regulations, with respect to some or all of the servers at some or all of the restaurants, and the court may conclude that the servers' use of a personal identification number constitutes electronic signatures. Then, with respect to the amounts recorded, if there are particular weeks in an individual server's records where the credit exceeds the tip amounts entered by the server, the defendant should be allowed to test the servers' credibility as to the accuracy of the amounts they entered into the system. The court will not foreclose the defendant from the opportunity to question individual plaintiffs regarding any loss or harm that resulted to them for any alleged failure to comply with the recordkeeping provisions or to inquire into the amounts recorded by individual plaintiffs. Again, while the plaintiffs' planned presentation of evidence may be expeditious, it ignores that there is no presumption of violation of the wage law for all servers for all hours worked. See Bucchere v. Brinker International, Inc., supra, Superior Court, Docket No. X01 04 4000238. Accordingly, the court finds that the plaintiffs have not met their burden with respect to the predominance requirement as to the notice claims.

Finally, the plaintiffs claim that even if the court does not grant its motion for class certification on the notice claims or the sidework claim, the court may certify a class with respect to their claim for injunctive relief The plaintiffs argue that their claim for injunctive relief relates to the policies of the defendant and would require only generalized proof The plaintiff has cited no cases where the court has separated out the plaintiffs' claim for an injunction and certified a class as to that issue only, when class certification has been denied as to the plaintiffs' claims for damages based upon the same alleged violations. The cases cited by the plaintiff are cases where class certification was granted and injunctive relief was the only relief sought, or was among the plaintiffs' claims for relief In this case, it would make little sense to litigate the CT Page 14057 plaintiffs' individual damages claims based upon alleged violations of the regulations, and then certify a class for the purpose of potentially directing the defendant to comply with the law. The plaintiffs have provided no rationale for their claim that a class should be certified solely for the purpose of obtaining injunctive relief and why the court should separate out that paragraph of the prayer for relief and certify a class based upon the type of relief requested. It is the plaintiffs' burden to show that the requirements of Practice Book §§ 9-7 and 9-8 have been met. Macomber v. Travelers Property Casualty Corp., 277 Conn. 617, 628, 894 A.2d 240 (2006). The plaintiffs have provided no separate analysis of the Practice Book requirements with respect to their claim that a class should be certified only as to the injunction claim. For example, the plaintiff has not addressed how the superiority requirement is met in a situation such as this and how certifying a class solely for the injunction claim for relief would be "superior to other available methods for the fair and efficient adjudication of the controversy." Practice Book § 9-8. As noted previously, the court has found that individualized issues predominate in such a way that it is impractical to certify a class on the substantive claims made by the plaintiffs. The plaintiffs have not met their burden of showing that the Practice Book requirements have been met with respect to their claim that the court should certify a class based upon their request for injunctive relief.

For all of the foregoing reasons, the plaintiffs' motion for class certification is denied.

So ordered.