Marsteller v. Butterfield 8 Stamford LLC et al

Filing 69

ORDER: For the reasons set forth in the attached ruling, Defendants' Motion for Summary Judgment (Doc. No. 57 ) is hereby GRANTED in part and DENIED in part. The Clerk shall enter judgment as to defendants Butterfield 8 WP LLC and Ralph Battista, Jr. with respect to all claims against them. The motion is being denied as to defendant Public House Investments LLC. Signed by Judge Alvin W. Thompson on 9/27/17. (Mata, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
-------------------------------- x
LAUREN E. MARSTELLER, AND ALL
:
OTHERS SIMILARLY SITUATED,
:
:
Plaintiff,
:
:
v.
:
:
BUTTERFIELD 8 STAMFORD LLC,
:
BUTTERFIELD 8 WP LLC, PUBLIC
:
HOUSE INVESTMENTS LLC, LOLAS
:
STAMFORD LLC, JOHN GAZZOLA,
:
RALPH BATTISTA, JR., DOUGLAS
:
NEWHOOK, AND RYAN SLAVIN,
:
:
Defendants.
:
-------------------------------- X

Civil No. 3:14-CV-1371(AWT)

RULING ON MOTION FOR SUMMARY JUDGMENT
The plaintiff, Lauren E. Marsteller (“Marsteller”), brings
this action against Butterfield 8 Stamford (“BU 8 Stamford”),
Butterfield 8 WP LLC (“BU 8 WP”), Public House Investments LLC
(“PHI”), Lolas Stamford LLC (“Lolas Stamford”), John Gazzola
(“Gazzola”), Ralph Battista, Jr. (“Battista”), Douglas Newhook
(“Newhook”), and Ryan Slavin (“Slavin”), asserting claims for a
hostile work environment, for sexual harassment and for
retaliation, pursuant to Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), and
Conn. Gen. Stat. §§ 31-290 and 46a-60 et seq..

She also brings

claims for unpaid overtime pursuant to the Fair Labor Standards
Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq., and Conn. Gen.

Stat. §§ 31-60(a) and 31-76(b), for intentional infliction of
emotional distress, and for unreasonable intrusion on the
seclusion of another.

Defendants BU 8 WP, PHI and Battista have

moved for summary judgment as to all claims in the plaintiff’s
First Amended Complaint against them.

For the reasons set forth

below, the defendants’ motion for summary judgment is being
granted as to BU 8 WP and Battista and denied as to PHI.
I.

FACTUAL BACKGROUND
Plaintiff Lauren E. Marsteller was at the time of the

events relevant to this action employed by BU 8 Stamford.

The

plaintiff contends that she was hired by BU 8 Stamford but
worked for both BU 8 Stamford and Lolas Stamford.
card had on it the names of both restaurants.

Her business

Many employees

worked for both BU 8 Stamford and Lolas Stamford.
In or about May 2012, the plaintiff started to work for BU
8 Stamford and Lolas Stamford.

Gazzola hired the plaintiff, and

Newhook met with the plaintiff and Gazzola at the time she was
hired.

The plaintiff’s direct supervisors were Newhook, the

general manager of BU 8 Stamford and Lolas Stamford, and Slavin,
the assistant manager of BU 8 Stamford.

Newhook had the primary

day-to-day control over the plaintiff’s work schedule.

Newhook

and Gazzola communicated her normal start and end times.

On or

about October 20, 2012, the plaintiff’s employment was summarily
terminated by Newhook.

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BU 8 WP did not open for business until after the
plaintiff’s employment with BU 8 Stamford and Lolas Stamford was
terminated.

Gazzola testified that BU 8 WP was not operating

until the end of 2012 even though the LLC was formed prior to
that.

Battista, the general manager of BU 8 WP, testified that

BU 8 WP was opened in September 2013.

The plaintiff stated that

she believes that during her employment she sent the credit card
batch to BU 8 WP, but she was not sure.

The plaintiff was never

directly employed by BU 8 WP.
Battista might have met the plaintiff one time in passing
while the plaintiff was employed at BU 8 Stamford.

Battista did

not hire or fire the plaintiff.
The defendants contend that BU8 WP, BU8 Stamford and Lolas
Stamford each maintain a separate corporate identity.

Gazzola

testified that he is the sole owner of BU 8 Stamford and Lolas
Stamford and provided relevant tax forms.

PHI was listed as the

applicant and apparent owner of the trademark logo “Lola’s
Mexican Kitchen,” under which Lolas Stamford operated its
business.

Pl.’s R. 56(a)2 Statement, Ex. A (“Doc. No. 67-1”) at

104-05 of 133.
mail account.

The plaintiff was provided with a PHI domain eDuring the relevant time period, employees at the

manager level at BU 8 WP, BU 8 Stamford and Lolas Stamford would
have been provided with PHI domain e-mail accounts.

The

plaintiff testified that she had seen several owners of BU 8

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Stamford gather frequently and checks would be handed out to the
individual owners.
The only employee handbook produced by the defendants set
forth the policies and practices of Butterfield 8 WP & Lola’s
Mexican Kitchen, LLC for the year 2013.
applied to BU 8 Stamford.

But the handbook also

Newhook testified that the handbook

would be “updated with a new year each year.”

Pl.’s R. 56(a)2

Statement, Ex. C (Doc. No. 67-3) at 13 of 21, ll. 6-7.

Slavin

testified that the handbook for 2012 did not include BU 8 WP.
The defendants contend that Brian Harrington is the sole
member and sole owner of PHI and that Gazzola had no ownership
interest in PHI.

Gazzola received $5,000 weekly from PHI.

Gazzola testified that it was “paid through a management fee
from [his] individual source and processed through payroll for
purposes of health benefits.”
17-20.

Doc. No. 67-1 at 62 of 133, ll.

According to Gazzola’s LinkedIn profile on May 8, 2014,

Gazzola had been a principal of PHI for a period of 8 years and
9 months.

Gazzola contends that the information was not

accurate and that he is not a member of PHI.

Gazzola admits

that he was aware of some publications that had characterized
him as an owner of PHI, and that he did not take steps to
correct them.
Battista was the executive chef of BU 8 Stamford when it
was opened in May of 2009.

He became the general manager of BU

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8 Stamford in January of 2010.

Battista worked for PHI in 2012

while he was a general manager of BU 8 Stamford.

He left BU 8

Stamford in January 2012 and started working at Mulberry Street,
another of Gazzola’s restaurants for which PHI provided
management support.

During his time at Mulberry Street,

Battista worked for PHI and not Mulberry Street.
received checks from PHI.

Battista

Gazzola was Battista’s boss and had

the authority to award him performance bonuses, and Battista did
not know who Gazzola worked for.

Battista testified that both

Harrington from PHI and Gazzola were his bosses, and had the
authority to hire and fire him.

Battista was transferred by

Gazzola from Mulberry Street to BU 8 WP in September 2013.
Battista testified that he was employed by PHI while serving as
the general manager of BU 8 WP.

According to Battista, there

were employees of PHI who worked at multiple locations,
including himself and Newhook.

Newhook worked as the manager of

BU 8 Stamford in 2009, and was transferred to Butterfield 8 New
York City in 2010.
end of 2010.

He then moved back to Lolas Stamford at the

He served as general manager for both BU 8

Stamford and Lolas Stamford from 2011 to 2013.

Newhook

testified that he had been working with Gazzola since 2008.
The defendants contend that “PHI was formed to provide
administrative and promotional advice to restaurants and to
create a corporate entity which could obtain cost-effective

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group health insurance and other benefits to the owners of
restaurants it serves” and PHI also provides accounting and
payroll services to BU 8 WP, BU 8 Stamford and Lolas Stamford.
Defs.’ Mem Supp. of Summ. J. (Doc. No. 59) at 7.

The defendants

further state that “PHI’s function with respect to these
defendants is purely ministerial.”

Id.

The plaintiff disputes that the function of PHI is purely
ministerial.

Battista testified that PHI was a management

company of the restaurants and provided additional support
including “payroll, cost control [and] help scheduling.”

Pl.’s

R. 56(a)2 Statement, Ex. B (Doc. No. 67-2) at 13 of 28, ll. 2-3.
As a manager, Battista “would enter the payroll into the system
taking the information from the point of sale and entering it
into the payroll to make sure it was accurate.”
22.

Id. at ll. 18-

Battista also testified that “payroll encompasses a lot of

things.

It encompasses entering payroll into the system, and

payroll also covers scheduling of employees and things like
that.”

Id. at 18-19 of 28, ll. 24-4.

In Battista’s LinkedIn

profile on May 8, 2014, Battista held himself out as having been
the regional manager of PHI from June 2011 to June 2013, and
stated that he hired and trained “management teams of each
concept,” managed all preopening activities and maintained
quality controls.
67-8) at 2 of 3.

Pl.’s R. 56(a)2 Statement, Ex. H (Doc. No.
The restaurants under his supervision included

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BU 8 WP, Mulberry Street and Lola’s Mexican Kitchen White
Plains.
Newhook testified that he, Gazzola and Battista received
human resources training together at a “summit” in Philadelphia
including training on hiring and termination, in either late
2012 or early 2013.

On PHI’s LinkedIn business profile, PHI

indicated that it changed its name to Table 95 Hospitality, but
PHI’s name remained “Public House Investments, LLC” as of
December 28, 2016.
II.

LEGAL STANDARD
A motion for summary judgment may not be granted unless the

court determines that there is no genuine issue of material fact
to be tried and that the facts as to which there is no such
issue warrant judgment for the moving party as a matter of law.
Fed. R. Civ. P. 56(a).

See Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986); Gallo v. Prudential Residential Servs., 22
F.3d 1219, 1223 (2d Cir. 1994).

When ruling on a motion for

summary judgment, the court may not try issues of fact, but must
leave those issues to the jury.

See, e.g., Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986); Donahue v. Windsor Locks
Bd. of Fire Comm’rs, 834 F.2d 54, 58 (2d Cir. 1987).

Thus, the

trial court’s task is “carefully limited to discerning whether
there are any genuine issues of material fact to be tried, not
to deciding them.

Its duty, in short, is confined . . . to

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issue-finding; it does not extend to issue-resolution.”

Gallo,

22 F.3d at 1224.
Summary judgment is inappropriate only if the issue to be
resolved is both genuine and related to a material fact.
Therefore, the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment.

An issue is

“genuine . . . if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
U.S. at 248 (internal quotation marks omitted).

Anderson, 477
A material fact

is one that would “affect the outcome of the suit under the
governing law.”

Id.

Only those facts that must be decided in

order to resolve a claim or defense will prevent summary
judgment from being granted.
prevent summary judgment.

Immaterial or minor facts will not

See Howard v. Gleason Corp., 901 F.2d

1154, 1159 (2d Cir. 1990).
When reviewing the evidence on a motion for summary
judgment, the court must “‘assess the record in the light most
favorable to the non-movant and . . . draw all reasonable
inferences in [the non-movant’s] favor.’”

Weinstock v. Columbia

Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Delaware & Hudson
Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir.
1990)). However, the inferences drawn in favor of the nonmovant
must be supported by evidence.

“‘[M]ere speculation and

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conjecture’” is insufficient to defeat a motion for summary
judgment.

Stern v. Trustees of Columbia Univ., 131 F.3d 305,

315 (2d Cir. 1997) (quoting Western World Ins. Co. v. Stack Oil,
Inc., 922 F.2d 118, 121 (2d. Cir. 1990)).

Moreover, the “mere

existence of a scintilla of evidence in support of the
[nonmovant’s] position” will be insufficient; there must be
evidence on which a jury could “reasonably find” for the
nonmovant.

Anderson, 477 U.S. at 252.

III. DISCUSSION
The defendants move for summary judgment on the grounds
that there is no genuine issue that Battista, BU 8 WP and PHI
neither were joint employers of the plaintiff, nor part of a
single integrated enterprise that employed her.
A. Single Integrated Enterprise Theory
“A single employer situation exists where two nominally
separate entities are actually part of a single integrated
enterprise so that, for all purposes, there is in fact only a
single employer.”

Clinton's Ditch Co-op Co. v. N.L.R.B., 778

F.2d 132, 137 (2d Cir. 1985) (quoting N.L.R.B. v. BrowningFerris Indus. of Pennsylvania, Inc., 691 F.2d 1117, 1122 (3d
Cir. 1982)) (internal quotation marks omitted).

The single

employer doctrine applies in the civil rights context.
Murray v. Miner, 74 F.3d 402, 404 (2d Cir. 1996).

See

“[F]our

factors determine whether two entities will be regarded as a

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single employer subject to joint liability for employmentrelated acts.

They are: (1) interrelated operations, (2) common

management, (3) centralized control of labor relations, and (4)
common ownership.”

Id. (citing Radio & Television Broad.

Technicians Local Union 1264 v. Broad. Serv. of Mobile, 380 U.S.
255, 256 (1965)).
FLSA purposes.

Courts have applied the four-factor test for

See Yap v. Mooncake Foods, Inc., 146 F. Supp. 3d

552, 558 (S.D.N.Y. 2015); Juarez v. 449 Rest., Inc., 29 F. Supp.
3d 363, 367 (S.D.N.Y. 2014); Perez v. Westchester Foreign Autos,
Inc., No. 11 CIV. 6091 (ER), 2013 WL 749497, at *7 (S.D.N.Y.
Feb. 28, 2013); Addison v. Reitman Blacktop, Inc., 283 F.R.D.
74, 84 (E.D.N.Y. 2011).
“To demonstrate single employer status, not every factor
need be present, and no particular factor is controlling.”
Lihli Fashions Corp. v. N.L.R.B., 80 F.3d 743, 747 (2d Cir.
1996), as amended (May 9, 1996) (citations omitted).
“[S]ingle employer status depends on all the circumstances of
the case and is characterized by absence of an arm's length
relationship found among unintegrated companies.”
and quotation marks omitted).

Id. (citation

The Second Circuit prioritizes

the second factor, the centralized control of labor relations.
See Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241 (2d
Cir. 1995).

See also Herman v. Blockbuster Entm't Grp., 18 F.

Supp. 2d 304 (S.D.N.Y. 1998), aff'd, 182 F.3d 899 (2d Cir. 1999)

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(“In assessing these factors in Title VII actions, courts should
focus their analysis on the second factor: centralized control
of labor relations.”); United Union of Roofers, Waterproofers, &
Allied Workers Local No. 210, AFL-CIO v. A.W. Farrell & Son,
Inc., 547 F. App'x 17, 19 (2d Cir. 2013) (“While no single
factor is dispositive, we have identified control of labor
relations as central.”) (citations and internal quotation marks
omitted).
1. The Interrelation of Operations
Several factors are considered by courts:
(1) whether the parent was involved directly in the
subsidiary's daily decisions relating to production,
distribution, marketing, and advertising; (2) whether the
two entities shared employees, services, records, and
equipment; (3) whether the entities commingled bank
accounts, accounts receivable, inventories, and credit
lines; (4) whether the parent maintained the subsidiary's
books; (5) whether the parent issued the subsidiary's
paychecks; and (6) whether the parent prepared and filed
the subsidiary's tax returns.
Herman v. Blockbuster Entm't Grp., 18 F. Supp. 2d at 309.
For interrelation of operations, “courts look to factors
such as common offices, long distance shipping, bank accounts,
payroll, and shared facilities rather than to an overlap of
personnel as an indicia of integration.”

Dewey v. PTT Telecom

Netherlands, U.S., Inc., No. 94 Civ. 5983 (HB), 1995 WL 425005,
at *3 (S.D.N.Y. July 19, 1995), supplemented on other matters
sub nom. Dewey v. PTT Telecom Netherlands, US, Inc., No. Civ. A.

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94 Civ. .5983 (HB), 1995 WL 542447 (S.D.N.Y. Sept. 12, 1995),
and both aff'd 101 F.3d 1392 (2d Cir.1996).
2. Centralized Control of Labor Relations
Centralized control over labor relations, the most
important factor in the single-employer inquiry, includes such
factors as to whether the companies have separate human
resources departments and whether the entity “establishes its
own policies and makes its own decisions as to the hiring,
discipline, and termination of its employees.” Laurin v. Pokoik,
No. 02 CIV. 1938 (LMM), 2004 WL 513999, at *6 (S.D.N.Y. Mar. 15,
2004) (quoting Duffy v. Drake Beam Morin, No. 96 CIV. 5606
(MBM), 1998 WL 252063, at *4 (S.D.N.Y. May 19, 1998)).

“To

satisfy the single-employer test, a plaintiff need not allege
that the parent” company “exercises ‘total control or ultimate
authority over hiring decisions,’ so long as he alleges that
there is ‘an amount of participation [by the parent] that is
sufficient and necessary to the total employment
process.’”

Brown v. Daikin Am. Inc., 756 F.3d 219, 227 (2d Cir.

2014) (quoting Cook, 69 F.3d at 1241) (addition in original).
The central question is “[w]hat entity made the final decisions
regarding employment matters related to the person claiming
discrimination?”

Cook, 69 F.3d at 1240 (citations and internal

quotation marks omitted).

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3. Common Management
Courts consider evidence of common management “‘in the
light of the well established principle that directors and
officers holding positions with a parent and its subsidiary can
and do change hats to represent the two corporations separately,
despite their common ownership.’”

Herman v. Blockbuster Entm't

Grp., 18 F. Supp. 2d at 312 (quoting Lusk, 129 F.3d at 779).
Common management “may be evidenced by an overlap in officers or
members who sit on the board of directors.”

Peltier v. Apple

Health Care, Inc., 130 F. Supp. 2d 285, 288 (D. Conn. 2000)
(citing Owens v. Am. Nat'l Red Cross, 673 F. Supp. 1156, 1161
(D. Conn. 1987)).
4. Common Ownership
“[A] determination of the fourth factor, common ownership,
may be influenced by a finding of absolute authority over
financial matters, including budgeting and payment of
employees.”

Peltier, 130 F. Supp. 2d at 289 (citing Owens, 673

F. Supp. at 1161).
B. Joint-Employer Relationship
“A conclusion that employers are ‘joint’ assumes that they
are separate legal entities, but that they have merely chosen to
handle certain aspects of their employer-employee relationships
jointly.”

Clinton's Ditch Co-op Co., 778 F.2d at 137 (quoting

Browning-Ferris Indus., 691 F.2d at 1122). The test for joint

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employment relationship may vary for different purposes.
1. Joint Employment Relationship for FLSA purposes
“The Supreme Court has emphasized the ‘expansiveness’ of the
FLSA’s definition of employer.”

Herman v. RSR Sec. Servs. Ltd.,

172 F.3d 132, 139 (2d Cir. 1999) holding modified by Zheng v.
Liberty Apparel Co. Inc., 355 F.3d 61 (2d Cir. 2003) (quoting
Falk v. Brennan, 414 U.S. 190, 195 (1973)).

The relevant

factors for joint employment are listed in 29 C.F.R. § 791.2(b):
“(1) Where there is an arrangement between the employers to
share the employee's services, as, for example, to interchange
employees; or (2) Where one employer is acting directly or
indirectly in the interest of the other employer (or employers)
in relation to the employee; or (3) Where the employers are not
completely disassociated with respect to the employment of a
particular employee and may be deemed to share control of the
employee, directly or indirectly, by reason of the fact that one
employer controls, is controlled by, or is under common control
with the other employer.”

29 C.F.R. § 791.2(b).

Due to the breadth of this definition, the Second Circuit
adopted the “economic reality” test for FLSA purposes: “whether
the alleged employer (1) had the power to hire and fire the
employees, (2) supervised and controlled employee work schedules
or conditions of employment, (3) determined the rate and method
of payment, and (4) maintained employment records.”

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Herman v.

RSR Sec. Servs. Ltd., 172 F.3d at 139 (citations and internal
quotation marks omitted).
No one factor alone is dispositive.

See Herman v. RSR Sec.

Servs. Ltd., 172 F.3d at 139 (citing Brock v. Superior Care,
Inc., 840 F.2d 1054, 1059 (2d Cir. 1988)).

The “‘economic

reality is determined based upon all the circumstances, [and]
any relevant evidence may be examined so as to avoid having the
test confined to a narrow legalistic definition.’”

Zheng, 355

F.3d at 71 (quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d at
139 (emphasis in original)).

In Herman, the Second Circuit

“expressly denied . . . that the four factors borrowed from the
Ninth Circuit in Carter are the exclusive touchstone of the
joint employment inquiry under the FLSA.”
71.

Zheng, 355 F.3d at

Thus, “in certain circumstances, an entity can be a joint

employer under the FLSA even when it does not hire and fire its
joint employees, directly dictate their hours, or pay them.”
Zheng, 355 F.3d at 70 (citing Rutherford Food Corp. v.
McComb, 331 U.S. 722 (1947).
“The FLSA defines an ‘employer’ more broadly than the common
law to include ‘any person acting directly or indirectly in the
interest of an employer in relation to an employee.’”

Murphy v.

Heartshare Human Servs. of N.Y., No. 17-CV-1033, 2017 WL
2378024, at *3 (E.D.N.Y. June 1, 2017) (quoting 29 U.S.C.

- 15 -

§ 203(d)).

“The ‘striking breadth’ of the FLSA's definition of

‘employ’ stretches the meaning of ‘employee’ to cover some
parties who might not qualify as such under a strict application
of traditional agency law principles.”

Murphy, 2017 WL 2378024,

at *3 (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318,
326 (1992)).

In Brock v. Superior Care, Inc., 840 F.2d at 1060,

the court found that infrequent supervisory visits were
sufficient to indicate requisite level of control for purposes
of FLSA.

See Barfield v. N.Y. City Health & Hosps. Corp., 537

F.3d 132, 147 (2d Cir. 2008).
In Murphy, the court distinguished between vertical joint
employment and horizontal joint employment.
2378024, at *4-*7.

See 2017 WL

“‘[T]he vertical joint employment

analysis . . . examines the economic realities of the
relationships . . . to determine whether the employees are
economically dependent on those potential joint employers and
are thus their [joint] employees.’”

Murphy, 2017 WL 2378024, at

*4 (quoting Opinion Letter from U.S. Dep't of Labor, Wage & Hour
Div., 2016 WL 284582 (“2016 DoL Opinion”), at *4 (Jan. 20,
2016)) (emphasis and omissions in original).

Examples of

vertical joint employment include: “[N]urses placed at a
hospital by staffing agencies”, 2016 DoL Opinion, at *8 (citing
Barfield, 537 F.3d 143–49); and “garment workers who are
directly employed by a contractor who contracted with the

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garment manufacturer to perform a specific function”, 2016 DoL
Opinion, at *8 (citing Zheng, 355 F.3d 71–72).
“Horizontal joint employment may exist when ‘two (or more)
employers each separately employ an employee and are
sufficiently associated with or related to each other with
respect to the employee.’”

Murphy, 2017 WL 2378024, at *5

(quoting 2016 DoL Opinion, at *4 (citing 29 C.F.R. § 791.2)).
Therefore, “‘the focus of a horizontal joint employment analysis
is the relationship between the two (or more) employers.’”
Murphy, 2017 WL 2378024 at *5 (quoting 2016 DoL Opinion, at *4
(citing 29 C.F.R. § 791.2))(emphasis in original).

One example

of horizontal joint employment is: “where a waitress works for
two separate restaurants that are operated by the same entity
and the question is whether the two restaurants are sufficiently
associated with respect to the waitress such that they jointly
employ the waitress . . . .”

Murphy, 2017 WL 2378024, at *5

(quoting 2016 DoL Opinion, at *5).
The DoL has determined that answers to the following questions
may be useful in assessing the degree of association between
potential horizontal joint employers:




who owns the potential joint employers (i.e., does one
employer own part or all of the other or do they have any
common owners);
do the potential joint employers have any overlapping
officers, directors, executives, or managers;
do the potential joint employers share control over
operations (e.g., hiring, firing, payroll, advertising,
overhead costs);
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

are the potential joint employers' operations intermingled
(for example, is there one administrative operation for both
employers, or does the same person schedule and pay the
employees regardless of which employer they work for);



does one potential joint employer supervise the work of the
other;



do the potential joint employers share supervisory authority
for the employee;



do the potential joint employers treat the employees as a
pool of employees available to both of them;



do the potential joint employers share clients or customers;
and



are there
employers.

any

agreements

between

the

potential

joint

Murphy, 2017 WL 2378024, at *6–*7 (quoting 2016 DoL Opinion at
*6-*7).
2. Joint Employment Relationship for Title VII Purposes
When the joint employer doctrine is applicable, “‘an
employee, formally employed by one entity, who has been assigned
to work in circumstances that justify the conclusion that the
employee is at the same time constructively employed by another
entity, may impose liability for violation of employment law on
the constructive employer, on the theory that this other entity
is the employee's joint employer.’”

St. Jean v. Orient-Express

Hotels Inc., 963 F. Supp. 2d 301, 307 (S.D.N.Y. 2013) (quoting
Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 198 (2d
Cir. 2005)).

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The Second Circuit has “‘not yet fully analyzed or
described a test for what constitutes joint employment in the
context of Title VII . . . The indicia suggesting a conclusion
of joint employment may vary depending on the purpose of the
inquiry.’”

St. Jean, 963 F. Supp. 2d at 307 (quoting Arculeo,

425 F.3d at 199 n.7).

“Other courts have found a joint employer

relationship in the discrimination context where ‘there is
sufficient evidence that the defendant had immediate control
over the formal employer's employees.’”

St. Jean, 963 F. Supp.

2d at 307-08 (quoting Dupree v. Urban Homesteading Assistance
Bd. Sterling St. Hous. Dev. Fund Corp., No. 10 Civ.
1894(JG)(JO), 2011 WL 1343163, at *6 (E.D.N.Y. Apr. 8, 2011)).
“Relevant factors may include commonality of hiring, firing,
discipline, pay, insurance, records, and supervision.”

St.

Jean, 963 F. Supp. 2d at 308 (quoting Dupree, 2011 WL 1343163,
at *6).
C. BU 8 WP
“[T]he single employer doctrine does not apply in the
absence of an employer-employee relationship at the time of the
alleged wrong.”

Murray, 74 F.3d at 403.

“[T]he two entities

must constitute a single employer at the time the unlawful act
was committed.”

Id. at 405.

Gazzola testified that BU 8 WP did not open for business
until the end of 2012 and Battista testified that BU 8 WP opened

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in September 2013, and both dates are after the date the
plaintiff’s employment was terminated.

The mere belief of the

plaintiff, about which she can not be sure, that she sent credit
card sale batches to BU 8 WP while employed by BU 8 Stamford is
insufficient to create a genuine issue of material fact.
Viewing the evidence in a light most favorable to the non-moving
party, no reasonable jury would find the evidence sufficient to
create a genuine issue of material fact as to when BU 8 WP
opened for business.
Thus, although there might well be a genuine issue as to
whether BU 8 WP was part of the single integrated enterprise or
a joint employer once it started operating, there is no genuine
issue as to the fact that BU 8 WP did not participate in the
hiring or firing decisions or exercise control over the
plaintiff, because it was not open for business during the time
the plaintiff was employed by BU 8 Stamford.
Therefore, the motion for summary judgment as to BU 8 WP is
being granted.
D. Battista
The plaintiff alleges that Battista was “a partner and
employee of BUTTERFIELD 8 STAMFORD LLC and as such, owns,
directs, or controls BUTTERFIELD 8 STAMFORD LLC.”
Compl., Doc. No. 7, at ¶ 13.

First Am.

The plaintiff also alleges that

the “[d]efendants each had substantial control over Plaintiff’s

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working conditions, and over the unlawful policies and practices
alleged herein.”

Id. at ¶ 3.

The plaintiff has not produced

any evidence that supports her allegations as to Battista.
Battista worked as the general manager of BU 8 Stamford, but
left to work for Mulberry Street in January 2012.

He worked

there until he left in September 2013 to work for BU 8 WP in
September 2013.

Also, he had no interaction with the plaintiff

in any meaningful way.

The plaintiff conceded that she and

Battista “did not have significant day-to-day interaction during
the period of her employment”.
No. 67) ¶ 6 at 3.

Pl.’s R. 56(a)2 Statement (Doc.

The plaintiff also conceded that “Battista

had no known involvement with the termination of her
employment”.

Id. at ¶ 7.

Thus, the plaintiff has failed to

create a genuine issue of material fact with respect to each
theory under which Battista could be found to be liable.
Therefore, motion for summary judgment as to Battista is
being granted.
E. PHI
The court finds that genuine issues of material fact exist
as to whether PHI and the plaintiff’s direct employer
constituted a single employer, specifically, with respect to
each of the non-exclusive four factors: interrelation of
operations, centralized control of labor relations, common
management, and common ownership.

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The court also finds that

genuine issues of material fact exist as to whether PHI and the
plaintiff’s direct employer were joint employers.
Therefore, the motion for summary judgment as to PHI is
being denied.
IV.

CONCLUSION
For the reasons set forth above, Defendants’ Motion for

Summary Judgment (Doc. No. 57) is hereby GRANTED in part and
DENIED in part.
The Clerk shall enter judgment as to defendants Butterfield
8 WP LLC and Ralph Battista, Jr. with respect to all claims
against them.
It is so ordered.
Signed this 27th day of September 2017, at Hartford,
Connecticut.

/s/AWT
Alvin W. Thompson
United States District Judge

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