Joyce v. The Upper Crust, et al
Filing
107
Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court DENIES Tobins's motion for partial summary judgment, D. 87. In addition, the Court ALLOWS IN PART and DENIES IN PART Tobins's motion to strike, D. 90 and 91.(Hourihan, Lisa)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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PATRICK JOYCE,
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Plaintiff,
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v.
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Civil Action No. 10-12204-DJC
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THE UPPER CRUST, LLC., JJB HANSON
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MANAGEMENT CO., INC. and
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JORDAN TOBINS,
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Defendants.
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__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.
July 21, 2015
Introduction
Plaintiff Patrick Joyce (“Joyce”) brings this action against his former employer, The
Upper Crust, LLC. (“Upper Crust”), its principal owner, Jordan Tobins (“Tobins”) and JJB
Hanson Management, Inc. (“JJB”) (collectively, the “Defendants”) alleging retaliation under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 215(a)(3), and Mass. Gen. L. c. 149, § 148A
(the “Wage Act”), as well as Massachusetts common law claims and violation of his civil rights
under Mass. Gen. L. c. 12, § 11I. D. 64. Tobins has moved for partial summary judgment on
Joyce’s retaliation claims. D. 87. Tobins has also moved to strike certain portions of the
affidavit Joyce submitted in support of Joyce’s opposition to Tobins’s motion for partial
1
summary judgment. D. 90 and 91.1 For the reasons discussed below, the Court DENIES
Tobins’s motion for partial summary judgment, D. 87, and ALLOWS IN PART and DENIES IN
PART Tobins’s motion to strike, D. 90 and 91.
II.
Standard of Review
The Court grants summary judgment where there is no genuine dispute as to any material
fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). “A fact is material if it carries with it the potential to affect
the outcome of the suit under applicable law.” Santiago–Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.
1996)). The movant bears the burden of demonstrating the absence of a genuine issue of
material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex v. Catrett, 477
U.S. 317, 323 (1986). If the movant meets its burden, the non-moving party may not rest on the
allegations or denials in her pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986), but “must, with respect to each issue on which she would bear the burden of proof at
trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor.” Borges ex
rel. S.M.B.W. v. Serrano–Isern, 605 F.3d 1, 5 (1st Cir. 2010). “As a general rule, that requires
the production of evidence that is ‘significant[ly] probative.’” Id. (quoting Anderson, 477 U.S.
at 249) (alteration in original). The Court “view[s] the record in the light most favorable to the
nonmovant, drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20,
25 (1st Cir. 2009).
1
The Court notes that D. 90 and D. 91, titled, respectively, motion to strike and motion to
correct, were filed on the same day and are identical.
2
III.
Procedural History
Joyce instituted this action against Tobins and Upper Crust on December 20, 2010. D. 1.
On March 1, 2011, Upper Crust and Tobins moved to dismiss. D. 6. The Court subsequently
allowed Joyce to amend the complaint – adding JJB as a defendant, additional factual allegations
and a claim for intentional infliction of emotional distress against Tobins – and denied without
prejudice the motion to dismiss. 8/9/11 docket entry. The Defendants then moved to dismiss the
amended complaint, D. 21 and 23, and JJB moved for sanctions, D. 25. Joyce thereafter moved
to file a second amended complaint (“SAC”), D. 26, and on July 25, 2012, the Court granted
Joyce’s motion. D. 36. The Court simultaneously granted, without prejudice, Defendants’
motion to dismiss as to Joyce’s Massachusetts retaliation claim only and denied JJB’s motion for
sanctions. Id.
Upper Crust and JJB filed a Suggestion of Bankruptcy on October 4, 2012. D. 56. On
October 16, 2012, the Court administratively closed the case as to all Defendants without
prejudice to either party moving to restore the action upon final determination of bankruptcy
proceedings. D. 57. On December 28, 2012, Joyce moved to reopen the case as to non-debtor
co-defendant Tobins only, D. 58, and the Court subsequently granted the motion, D. 60.
Thereafter, the Court considered Joyce’s motion to dismiss Tobins’s counterclaims, D. 45, which
had not been resolved prior to the case being closed. On December 26, 2013, the Court denied
Joyce’s motion to dismiss. D. 73.
On June 6, 2013, Joyce filed a third amended complaint (“TAC”) to add a retaliation
claim under the Wage Act, Mass. Gen. L. c. 149 § 148A. D. 64. In his TAC, Joyce alleges
retaliation under the FLSA, 29 U.S.C. § 215(a)(3) (Count I), retaliation under Mass. Gen. L. c.
149, § 148A, (Count II), violation of his civil rights under Mass. Gen. L. c. 12, § 11I (Count III),
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defamation (Count IV) and intentional infliction of emotional distress (Count V). Id. Tobins has
now moved for partial summary judgment as to Joyce’s retaliation claims only. D. 87. Tobins
also moved to strike certain portions of the affidavit Joyce submitted in support of his opposition
to Tobins’s motion. D. 90 and 91. The Court heard argument on Tobins’s pending motions and
took the matters under advisement. D. 106.
IV.
Factual Background2
The following facts are as described in Joyce’s statement of material facts, D. 85. Tobins
did not file a statement of material facts in support of his motion for partial summary judgment.3
Upper Crust is a limited liability corporation, operating multiple pizzerias in
Massachusetts. D. 85 ¶ 2. At all relevant times, Tobins was an owner of Upper Crust. Id. ¶ 3.
Joyce began working for Upper Crust in 2003 as a counter person in the Brookline location. Id.
¶ 5. In 2007, Joyce was promoted to Operations Manager, a position that included “overseeing
the kitchen managers and front of the house managers” at six locations across eastern
2
As a threshold matter, to decide Defendants’ motion for summary judgment, the Court
must determine what evidence it can consider. See Fed. R. Civ. P. 56(c). Tobins has moved to
strike certain portions of Joyce’s affidavit submitted in support of his memorandum in opposition
to Tobins’ motion for partial summary judgment. D. 90 and 91. Specifically, Tobins moves to
strike paragraphs ten, thirteen, fourteen, sixteen and twenty of Joyce’s affidavit, as well as the
third sentence of paragraph nineteen. Id. After review of Joyce’s affidavit, the Court ALLOWS
IN PART Tobins’s motion to strike, D. 90 and 91, and therefore STRIKES paragraphs thirteen,
sixteen and the third sentence of paragraph nineteen because these sections rely on inadmissible
hearsay, simply assert a legal theory and/or are not based upon personal knowledge. See Joyce
Aff., D. 86-1 ¶¶ 13, 16, 19. Joyce’s affidavit otherwise stands.
3
At oral argument, Joyce argued that Tobins’s motion for partial summary judgment
should be dismissed as Tobins did not submit a concise statement of material facts in support of
his motion in accordance with Local Rule 56.1. See Mass. L. R. 56.1 (noting that “[m]otions for
summary judgment shall include a concise statement of the material facts. . .” and that “[f]ailure
to include such a statement constitutes grounds for denial of the motion”). Tobins indicated,
however, that for the purposes of summary judgment, he did not dispute the facts as presented by
Joyce. Accordingly, the Court will not dismiss Tobins’s motion due to this procedural flaw, but
will rely upon Joyce’s statement of facts with all reasonable inferences drawn in Joyce’s favor.
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Massachusetts. Id. ¶ 7. In his role as Operations Manager, Joyce had regular contact with Upper
Crust owners and upper-level managers, including Tobins. Id. ¶ 8.
In 2009, the U.S. Department of Labor (“DOL”) started an investigation into Upper
Crust’s wage and hour practices, specifically for unpaid overtime. Id. ¶ 9. In July 2009, as a
result of the investigation, the DOL ordered Upper Crust to pay $341,545.53 in back wages to
current and former employees. Id. Following these payments, in August 2009, Tobins attended
a meeting with other Upper Crust owners and managers and told employees that they would have
to pay the money back to the company if they wanted to keep their jobs. Id. ¶ 10. Upset about
this requirement to remit back pay, the employees complained to Upper Crust store managers,
including Joyce. Id. ¶ 12. Joyce then brought the employees concerns to the attention of owner
Brendan Higgins (“Higgins”), General Manager (“GM”) Barry Proctor (“Proctor”) and Chief
Financial Officer (“CFO”) David Marcus (“Marcus”), notifying them that the employees were
very distressed about this ultimatum and that they were becoming uncooperative as a result. Id. ¶
16. Joyce also told Higgins and Marcus that he was concerned that such a requirement was
illegal. Id. In response, Joyce was simply told to fire any employees who were uncooperative.
Id. ¶ 17. Joyce also spoke with Upper Crust manager Luciano Botelho (“Botelho”) about
Tobins’s requirement that the employees return their back wages and told Botelho that he was
planning to notify the DOL investigator. Id. ¶ 13, 14. Botelho was an Upper Crust kitchen
manager who Tobins had ordered to tell Upper Crust’s Brazilian workers about the requirement
to remit their back pay. Id. ¶ 11. In January 2010, Joyce called the DOL on his company cell
phone and reported Upper Crust’s remittance policy. Id. ¶¶ 18, 29.
The DOL subsequently
undertook a new investigation into the Upper Crust’s practices and notified Tobins of the
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investigation soon afterward. Id. ¶ 18. Joyce also informed Botelho that he had contacted DOL.
Id. ¶ 15.
After Joyce’s internal and external complaints, the behavior of Upper Crust’s ownership
and upper-level management towards Joyce changed precipitously. Id. ¶ 19. The owners told
Joyce that he was not working hard enough and began requiring him to clock in and out every
day even though salaried employees were not typically required to clock in and out. Id. ¶ 20.
Tobins and the other owners also called Joyce into a “special meeting” in March 2010 where
they critiqued his job performance and told him that he was not doing well. Id. ¶ 21. Joyce did
not believe that his work quality had deteriorated and he was not aware that any Upper Crust
manager had ever complained about his work. Id. In April 2010, owners Josh Huggard and
Tobins called Joyce and yelled at him about a water leak in the Brookline location, despite the
fact that the owners had been aware of the leak and were actively engaged in a dispute with the
building’s management company about the cost of the repairs. Id. ¶¶ 22, 23. Although Huggard
and Tobins knew that the issue was out of Joyce’s control, they called him to yell at him about
the problem when they knew that he was away planning his wedding. Id. ¶ 23. The next month,
on May 18, 2010, Tobins called Joyce in the early morning, accusing Joyce of being involved in
a theft that had taken place at the Commonwealth Avenue location of Upper Crust the previous
night. Id. ¶ 24.
During the phone call Tobins screamed and yelled obscenities at Joyce. Id.
¶¶ 24-25.
As a result of these incidents, Joyce decided that he could no longer work at the
company. Id. ¶ 26. On May 18, 2010, the same day as Tobins’s phone call, Joyce gave notice.
Id. His resignation was effective June 1, 2010. Id. Upon receiving his last pay check, Joyce
noticed that it was short by several hundred dollars. Id. ¶ 27. After contacting Marcus, the
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Upper Crust CFO, and another owner about the deficit, Joyce eventually heard from Tobins that
the money had been deducted from Joyce’s check to cover Joyce’s personal use of his company
cell phone. Id. ¶¶ 28, 29. Tobins indicated that he had reviewed Joyce’s cell phone records and
had deducted the cost of his personal calls. Id. ¶ 28. It was common practice for Upper Crust
employees to use company issued cell phones for both business and personal calls. Id. ¶ 30.
Joyce had used the phone for years for both business and personal calls, including his call to the
DOL, with the understanding that personal use was permissible. Id. ¶¶ 29, 30. Joyce told Tobins
that if he did not receive the balance of his final check that he would report it to the DOL. Id. ¶
31.
In response, Tobins threatened Joyce saying, “Patrick if you go to the [DOL] I will
(expletive) kill you. I will tell your fiancée that you are cheating on her and I will ruin your life.”
Id. Joyce did not receive the balance due on his check, but decided not to notify the DOL. Id.
¶ 32.
V.
Discussion
Tobins seeks summary judgment as to Joyce’s retaliation claims only, arguing that Joyce
has made no showing that Tobins had any knowledge of any of Joyce’s alleged complaints to the
DOL regarding violations of either the FLSA or the Wage Act. D. 82 at 5-6. As such, Tobins
argues that he could not be liable for retaliating against Joyce for making a complaint that he did
not know about. Id.
A.
Count I: Retaliation Claim Under 29 U.S.C. § 215(a)(3)
Joyce alleges a retaliation claim under the FLSA, which makes it “unlawful for any
person . . . to discharge or in any other manner discriminate against any employee because such
employee has filed any complaint or instituted or caused to be instituted any proceeding under or
related” to the Act. 29 U.S.C. § 215(a)(3). To state a claim for retaliation under the FLSA,
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Joyce must show that: “(1) [he] engaged in a statutorily protected activity, and (2) his employer
thereafter subjected him to an adverse employment action (3) as a reprisal for having engaged in
protected activity.” Claudio-Gotay v. Becton Dickinson Caribe, Ltd., 375 F.3d 99, 102 (1st Cir.
2004). Tobins focuses on the third element. Tobins argues that “[k]nowledge that a person
engaged in protected activity is at the heart of any retaliation case,” D. 82 at 7, and relies on
Kasten v. Saint-Gobain Performance Plastics Corp., ___U.S.___, 131 S. Ct. 1325, 1335 (2011)
for the proposition that “it is difficult to see how an employer who does not (or should not) know
an employee has made a complaint could discriminate because of that complaint.”4
Considering Joyce’s retaliation claim, however, the key inquiry is whether he has shown
specific admissible facts “from which a reasonable factfinder could infer that the employer
retaliated against him for engaging in the protected activity.” Blackie v. State of Me., 75 F.3d
716, 723 (1st Cir. 1996) (citing Mesnick v. General Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991),
cert. denied, 504 U.S. 985 (1992)). In other words, Joyce need only proffer a “causal connection
. . . between the protected conduct and the adverse action.” Id. at 723 (emphasis and citation
omitted). Joyce must make some showing that Tobins “knew of the plaintiff’s protected conduct
4
At the motion hearing, Tobins also relied on Ocasio-Hernández v. Fortuño-Burset, 777
F.3d 1 (1st Cir. 2015) and Ameen v. Amphenol Printed Circuits, Inc., 777 F.3d 63 (1st Cir. 2015)
to argue that Joyce must show that Tobins knew about Joyce’s protected activity. The Court
agrees that Joyce must make some showing that Tobins knew that Joyce complained to the DOL.
In the cases cited by Tobins, however, there was no evidence at all that the defendants knew of
the plaintiff’s protected activity. Ocasio-Hernández, 777 F.3d at 7 (noting that the First Circuit
has “consistently held that circumstantial evidence can suffice to show a defendant’s
knowledge,” but concluding that plaintiffs had pointed “to no evidence showing that the
defendants they sued had [the requisite] knowledge”); Ameen, 777 F.3d at 70 (acknowledging
that a plaintiff “must show that the retaliator knew about [his] protected activity,” but noting that
in the present case the parties did not dispute that the defendant had no knowledge of the
plaintiff’s protected activity).
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when he [] decided to take the adverse employment action,” but “[t]emporal proximity can create
an inference of causation in the proper case.” Pomales v. Celulares Telefónica, Inc., 447 F.3d
79, 85 (1st Cir. 2006) (citations omitted). “A showing of adverse action soon after an employee
engages in protected activity is evidence that there is a causal connection between the adverse
action and the protected activity.” Cheng v. IDEAssocs., Inc., No. 96-cv-11718-PBS, 2000 WL
1029219, at *5 (D. Mass. July 6, 2000). “Such a causal connection creates an inference of
retaliation.” Id.; Oliver v. Digital Equip. Corp., 846 F.2d 103, 110 (1st Cir. 1988) (holding that
“[a] showing of discharge soon after the employee engages in [protected activity] . . . is indirect
proof of a causal connection between the firing and the activity because it is strongly suggestive
of retaliation” (citations omitted)).
At the very least, here, there is evidence of a close temporal proximity between the
adverse action and the protected activity. After Joyce reported his concerns to the DOL in
January 2010, Joyce’s standing at Upper Crust began to deteriorate – receiving unexpected
criticisms only months later and being forced to quit within six months. D. 85 ¶¶ 19-26.
Additional evidence of a causal connection between Joyce’s protected activity and the adverse
action exists here, however, where the record indicates that Joyce regularly reported his concerns
regarding Upper Crust’s treatment of its employees to several of Upper Crust’s owners and
managers, both before and during the second DOL investigation.
Id. ¶¶ 14-17.
Joyce
specifically reported to Upper Crust owner Higgins and CFO Marcus that he was concerned that
Tobins’s requirement that the employees remit their back pay was illegal. Id. ¶ 16. Moreover,
Joyce informed manager Botelho that he was planning on reporting Tobins’s alleged remittance
requirement to the DOL and subsequently confirmed to Botelho that he had done so. Id. ¶¶ 14,
15. Furthermore, after Joyce resigned, Tobins admitted to Joyce that he had access to, and was
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reviewing, Joyce’s phone records. Id. ¶¶ 28, 29. Tobins seems to acknowledge that Joyce’s final
pay check was reduced based on the personal calls Joyce made from his company cell phone, see
D. 100 at 3-4, which is the same phone that Joyce contends he used to notify the DOL of Upper
Crusts wage practices. Taken together, these factual allegations are sufficient to support the
inference of a causal connection between the adverse action and Joyce’s report to the DOL.
D. 85 ¶ 29.
Notably, Tobins has presented no evidence to contest that Joyce complained to managers
about Tobins’s remittance requirement or that Joyce told Botelho of his intention to notify DOL
with his concerns. Nor does Tobins dispute that in early 2010, soon after Joyce’s complaint to
DOL, Upper Crust management began to express concerns about Joyce’s job performance.
Rather, Tobins simply denies that he knew, prior to Joyce’s resignation from the company, that
Joyce had reported anything to DOL regarding Upper Crust’s conditions of employment. See
Tobins Aff., D. 82-2 ¶¶ 2, 3. Tobins’s lack of knowledge is disputed by Joyce in light of the
circumstantial evidence cited above, however, and as such, Tobins’s affidavit, standing alone, is
insufficient to demonstrate an absence of a genuine issue of material fact.
Tobins offers a different version of events, of course, arguing that there was a legitimate
reason for Joyce’s worsening relationship with management.
Tobins contends that
management’s behavior toward Joyce was warranted and was due to deterioration in Joyce’s job
performance, not Joyce’s report to DOL. D. 100 at 2-3. Indeed, the FLSA anti-retaliation
provision does not prohibit necessary business and employment decisions “simply because doing
so may affect an employee who successfully asserted FLSA-protected rights.” Blackie, 75 F.3d
at 723. All the provision mandates is “that an employer must put to one side an employee’s
lawful efforts to secure rights assured by the FLSA.” Id. Here, Tobins argues that Joyce was
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initially an “effective” employee, but that “[a]s he took on more responsibility, it seemed
somewhat overwhelming for him, and he was not as effective.” D. 100 at 8. Tobins further
argues that Joyce was not spending enough time in his assigned stores and that Tobins and the
other owners had to speak with him about being present more often. Id. at 8-9. As to Tobins’s
May 2010 phone call to Joyce regarding a theft at an Upper Crust location, Tobins contends that
Joyce had left a spare set of keys to the store safe out on the counter, and that when Tobins called
to speak with Joyce about the incident that he was “upset,” in part, because he had a hard time
reaching him.
Id. at 2-3.
Tobins suggests that the episode called into question Joyce’s
competence and that, when Tobins confronted Joyce, Joyce got very upset and tendered his
resignation. Id. at 11. Finally, Tobins argues that his behavior was inconsistent with someone
who knew that Joyce had made a report to the DOL, especially since Tobins “never asked
[Joyce] why he was calling DOL” and because Tobins allowed Joyce to complete his two-week
notice rather than terminating his employment effective immediately. Id. at 4. While Tobins is
free to make these arguments to the factfinder, they are insufficient to demonstrate the absence of
a genuine issue of material fact regarding Tobins’s knowledge of Joyce’s complaint to the DOL.
In sum, Joyce and Tobins offer different versions of events. These different narratives
establish a genuine dispute of material fact. Accordingly, the Court concludes that Tobins has
failed to show an absence of material fact as to Joyce’s FLSA retaliation claim.
B.
Count II: Retaliation Claim Under Mass. Gen. L. c. 149, § 148A
Joyce also asserts a retaliation claim under the Wage Act, Mass. Gen. L. c. 149, § 148A.
The Wage Act’s anti-retaliation provision prohibits an employer from penalizing an employee
“in any way as a result of any action on the part of an employee to seek his or her rights under
the wages and hours provisions of this chapter.” Mass. Gen. L. c. 149, § 148A. The Wage Act
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further provides that “[a]ny employer who discharges or in any other manner discriminates
against any employee because such employee has made a complaint to the attorney general or
any other person . . . shall have violated this section . . . .” Id. The purpose of the anti-retaliation
provision is “to encourage enforcement of the wage laws by protecting employees who complain
about violations of the same.” Smith v. Winter Place LLC, 447 Mass. 363, 368 (2006).
Here, Joyce bears the burden of showing that Tobins’s justification for the adverse action
is pretextual and that there is “a causal connection between [Joyce’s] action and [Tobins’s]
adverse action.”
Belghiti v. Select Restaurants, Inc., No. 10–cv-12049-GAO, 2014 WL
1281476, at *4 (D. Mass. Mar. 31, 2014) (citation omitted). “A plaintiff may establish pretext
using circumstantial evidence based on the temporal proximity between a plaintiff’s action and a
defendant’s adverse action.” Id. As with the FLSA claim discussed above, then, Joyce need
only show a causal connection between his protected activity and the adverse action to create an
inference of retaliation. For the reasons discussed in detail above, the Court concludes that there
is a genuine issue of material fact whether Tobins’s knew of Joyce’s report to the DOL and
retaliated against him in violation of the Wage Act. In addition, the Court notes that when
considering summary judgment motions based on issues such as knowledge, the Court should
exercise particular restraint. Id. (noting that “[c]ourts should exercise particular caution before
granting summary judgment for employers on such issues as pretext, motive, and intent”).
Accordingly, concludes that Tobins has failed to show an absence of material fact as to Joyce’s
retaliation claim under the Wage Act.
VI.
Conclusion
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For the foregoing reasons, the Court DENIES Tobins’s motion for partial summary
judgment, D. 87. In addition, the Court ALLOWS IN PART and DENIES IN PART Tobins’s
motion to strike, D. 90 and 91.
So Ordered.
/s/ Denise J. Casper
United States District Judge
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