Parrott et al v. Marriott International, Inc.

Filing 26

ORDER denying 15 Motion to Dismiss. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STEPHANE PARROTT, et al.,
Plaintiffs,
Case No. 17-10359
v.
Honorable Victoria A. Roberts
MARRIOTT INTERNATIONAL, INC.,
Defendant.
_________________________________/
ORDER DENYING DEFENDANT’S MOTION TO DISMISS [Doc. 15]
I.

Background
Stephane Parrott and Kevin Williams (“Plaintiffs”) individually and on behalf of

similarly situated individuals, filed an Amended Collective Action Complaint (“Amended
Complaint”) against Marriott International, Inc. (“Marriott”) seeking relief under the Fair
Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 201, et. seq.
Plaintiffs seek to recover unpaid overtime wages on behalf of themselves and
other current and former Food and Beverage Managers (“Food Managers”) who worked
more than forty hours a workweek at any hotel operated as a “Courtyard by Marriott”
(“Courtyard”). Plaintiffs allege that Marriott willfully misclassified Food Managers as
“executives” exempt from FLSA overtime pay protections. In reality, Plaintiffs say they
performed such jobs as “unloading delivery trucks, stocking supplies, cooking” and
“general restaurant preparatory work.” Plaintiffs allege that such duties were “manual
labor” that “did not materially differ from the duties of non-exempt hourly employees.”
Amended Complaint, paragraph 21.

1

It is not contested that the Courtyard hotels in which Plaintiffs worked are
franchised by various companies. According to Plaintiffs, Marriott was their joint
employer and responsible for the FLSA violations. Marriott claims that Plaintiffs fail to
satisfy the standards necessary to plead an action based on joint employment, and file
a motion to dismiss (“Motion to Dismiss”), pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure.
That motion is DENIED.
II.

Legal Standard
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of

the complaint. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th
Cir. 1996). A court must “construe the complaint in the light most favorable to the
plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the
plaintiff.” DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). Dismissal is proper
only if it appears beyond doubt that the plaintiff can prove no set of facts in support of
the claims that would entitle him or her to relief.” Zaluski v. United Am. Healthcare
Corp., 527 F.3d 564, 570 (6th Cir. 2008). A complaint must contain sufficient factual
matter to ‘state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
claim is plausible on its face "when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Id. (citing Twombly, 550 U.S. at 556).
III.

Discussion
A. Sixth Circuit Standard
2

At issue is whether Plaintiffs plead sufficient facts to demonstrate that Marriott is
their joint employer. The FLSA defines an “employer” as “any person acting directly or
indirectly in the interest of an employer in relation to an employee … .” 29 U.S.C.S §
203(d). “Under the FLSA, the issue of joint employment . . . depends upon all of the
facts in the particular case and is largely an issue of control.” Bacon v. Subway
Sandwiches & Salads LLC, 2015 U.S. Dist. LEXIS 19572, *8 (E.D. Tenn. Feb. 19, 2015)
(internal quotations omitted). “The Sixth Circuit has not formulated a test for identifying a
joint employer for FLSA purposes; however, in the context of Title VII, the Sixth Circuit
has considered three potential factors to be considered in determining if an entity may
be considered a joint employer: (1) exercise of the authority to hire, fire, and discipline;
(2) control over pay and insurance; and (3) supervision.” Id. See Sanford v. Main St.
Baptist Church Manor, Inc., 327 Fed. Appx. 587, 594, (6th Cir. 2009) (“in the NLRB
context” factors “such as exercise of authority to hire, fire, and discipline, control over
pay and insurance, and supervision … can bear on whether an entity, which is not the
formal employer, may be considered a joint employer”). Other district courts in the Sixth
Circuit have applied these factors. See Reid v. Quality Serv. Integrity, 2016 U.S. Dist.
LEXIS 5878, *6 (E.D. Tenn. Jan. 19, 2016); Williams v. King Bee Delivery, LLC, 199 F.
Supp. 3d 1175, 1180-1181 (E.D. Ky. 2016); Politron v. Worldwide Domestic Servs.,
LLC, 2011 U.S. Dist. LEXIS 52999, *2-7 (M.D. Tenn. May 17, 2011).
In this district, the focus in joint employment cases has been on “whether the
plaintiff’s alleged joint employer (i) had the power to hire and fire [] employees, (ii)
supervised and controlled employee work schedules or conditions of employment, (iii)

3

determined the rate and method of payment, and (iv) maintained employment records.”
Dowd v. DirecTV, LLC, 2016 U.S. Dist. LEXIS 36, *11-12 (E.D. Mich. Jan. 4, 2016).
Plaintiffs direct the Court to two district court decisions in the Second Circuit –
decisions that use a “functional control test” to determine the issue of joint employment.
Olvera v. Bareburger Group LLC, 73 F. Supp. 3d 201, 205 (S.D.N.Y. 2014); Ocampo v.
455 Hospitality LLC, 2016 U.S. Dist. LEXIS 125928, *18-19 (S.D.N.Y. Sept. 14, 2016).
However, these cases have no persuasive authority, and there is no need for the Court
to apply them. Importantly, sufficient precedent exists within the Sixth Circuit to evaluate
the sufficiency of Plaintiffs’ allegations. Accordingly, this Court will focus on the control
exercised by Marriot over the Plaintiffs under the approach used by other district courts
in this Circuit. See Bacon, 2015 U.S. Dist. LEXIS 19572, *8.
B. Plaintiffs’ Allegations
Plaintiffs make numerous claims which sufficiently allege that Marriott exercises
control and is their joint employer. Specifically, Plaintiffs allege that Marriott: (1) treats
Plaintiffs like Marriott employees by giving all Food Managers discount room rates at
Marriott hotels worldwide (Amended Complaint, paragraph 37), (see Reid v. Quality
Serv. Integrity, 2016 U.S. Dist. LEXIS 5878, *6-8 (E.D. Tenn. Jan. 19, 2016) (the ability
to affect “compensation and benefits” is a factor that determines joint employment)); (2)
exercises “a substantial degree of supervision over the work of Food Managers”
(Amended Complaint, paragraph 31(h); (3) controls operations through “corporate
managers and auditors who review and compel compliance with corporate directives”
(id. at paragraph 29); (4) supervises and controls work schedules for Food Managers by
auditing financial records and meeting with hotel personnel about controlling labor costs
4

(id. at paragraph (30(c)); (5) controls working conditions by requiring franchises to
comply with “workplace rules” and standards by which food and beverage services are
to be rendered (id. at paragraph 30(d), 31(d)); (6) maintains employment records (id. at
paragraph 30(f)), (see Politron 2011 U.S. Dist. LEXIS 52999, *7 (granting the
defendant’s motion to dismiss where the plaintiffs admitted, among other things, that the
defendant “kept no employment records” for the plaintiffs)); and (7) imposes
standardized procedures for hiring food managers (Amended Complaint at paragraph
30(a)), 31(e), (see Dowd, 2016 U.S. Dist. LEXIS 36, *14 (denying the defendant’s
motion to dismiss where the plaintiff alleged that defendant imposed “hiring
requirements” on subcontractors).
Plaintiffs also allege that Marriott maintained the ability to end franchise
agreements and thereby terminate Food Managers’ employment (Amended Complaint,
paragraph 26, 30(b), 32). Although Marriott cites to case law that suggests that a
franchisor’s right to terminate a franchise agreement does not amount to control over
franchisee employees (Motion to Dismiss pg. 11), these cases are not from this Circuit,
and are thus not binding. Further, given Plaintiffs’ numerous other allegations, this Court
can still find that they sufficiently plead joint employment.
C. Plaintiffs’ Allegations of Their Personal Relationship with Marriott
As Marriott correctly states, many courts which have been called upon to decide
if a named defendant is a joint employer, consider the nature of the relationship
between the plaintiff and the defendant, and require the plaintiff to allege the existence
of a personal relationship. In their reply brief (“Reply”), Marriott says that Plaintiffs do not
allege facts concerning their relationship to Marriott (Reply, pg. 6).
5

Marriott is wrong. Plaintiffs make several allegations concerning their personal
relationship with Marriott, including that: (1) Ms. Parrott and Mr. Williams were trained to
work at Marriott’s new Bistro cafes, and “attended daily meetings which included further
directives from Marriott regarding the Bistro’s operation” (Amended Complaint,
paragraph 33(d)); (2) Marriott instructed Ms. Parrott which vendor she was to use for
purchasing food and supplies (id. at paragraph 33(f)); (3) Mr. Williams was observed by
Marriott corporate auditors (id. at paragraph 40(a)) and his department was once faulted
for printing and laminating their own table numbers – the auditor directed that the only
table numbers Marriott permitted must be ordered from Marriott’s online platform (id. at
paragraph 30(g)); and (4) Ms. Parrott and Mr. Williams were told that they work “first
and foremost” for Marriott (id. at paragraph 36).
These allegations point directly towards Marriott’s personal supervision and
employment of Plaintiffs, making Plaintiffs’ allegations of Marriott’s joint employment
sufficient to state a claim.
D. Marriott’s Arguments
Many of the cases Marriott directs the Court’s attention to involve motions for
summary judgment, not motions to dismiss. Because the Court applies a different
standard of review to motions for summary judgment, these cases are inapplicable.
Marriott does rely on a motion to dismiss case, from the Northern District of
Illinois, to suggest that Plaintiffs’ allegations are not sufficient to state a claim. Brunner
v. Liautaud, 2015 U.S. Dist. LEXIS 46018, *11-14 (N.D. Ill. Apr. 8, 2015). While Brunner
uses factors similar to those used in this Circuit to determine the issue of joint
employment, Brunner reaches its conclusion by applying principles that have not been
6

settled within this Circuit (for example, that the right to terminate a franchise agreement,
and to have control over uniformity and compliance, do not support a finding of a joint
employer relationship). Marriott cites to no Sixth Circuit case which support the
application of such principles to this dispute.
Brunner is otherwise distinguishable. First, the Brunner court suggests that
providing guidance on the suitable characteristics for potential employees does not
support a finding of joint employer status. Brunner, 2015 U.S. Dist. LEXIS 46018, *13.
However, this suggestion is contrary to Dowd. See Dowd, 2016 U.S. Dist. LEXIS 36,
*14. Second, the Brunner court granted the defendant’s motion to dismiss in part,
because the plaintiff did not plead “distinct facts that firmly establish [defendant’s]
control over employees’ work schedules.” Brunner, 2015 U.S. Dist. LEXIS 46018, *15.
As detailed above, Plaintiffs do plead control, and other facts, with sufficiency.
Finally, as Brunner suggests, “the ultimate determination will vary depending on
the specific facts of each case,” and the Court should look “at the employment situation
as a whole, analyzing the amount of control the alleged joint employer had over
employees.” Id. at *11-12 (internal citations and quotations omitted). This standard is
similar to that used by many district courts in the Sixth Circuit. See International
Longshoremen's Assn., Local Union No. 1937 v. Norfolk Southern Corp., 927 F.2d 900,
902 (6th Cir.1991) (“whether a [defendant] possesses sufficient control over the work of
employees to qualify as a joint employer is essentially a factual issue”). Using this
approach, the Court finds that Plaintiffs allege sufficient facts to demonstrate that
Marriott has control over Food Managers, and that Marriott is a joint employer, to
weather this 12(b)(6) motion to dismiss.

7

IV.

Conclusion
Marriott claims that courts have consistently ruled that franchise arrangements

“do not create an employment relationship between a franchisor and a franchisee’s
employees.” Motion to Dismiss, pg 2-3. However, Marriott cites to no case, let alone a
consistent body of cases. This is the beginning of Marriott’s faulty analysis; it causes
Marriott to focus on the franchise agreements between Marriott and Courtyard hotels in
launching a general attack on the sufficiency of Plaintiffs’ allegations rather than on
whether the allegations are sufficient under Sixth Circuit factors.
This motion is designed to test the sufficiency of Plaintiffs’ Amended Complaint.
Accordingly, the Court is required to look at all of Plaintiffs’ allegation in a light most
favorable to them. Doing this, and drawing all reasonable references in Plaintiffs’ favor,
the Court finds they allege enough facts to support their joint employer theory. The facts
alleged suggest that Marriott acted either directly or indirectly in its interest in relation to
Plaintiffs, as per the FLSA. 29 U.S.C.S § 203(d). Further, the facts alleged suggest that
Marriott, through the standards and policies they allegedly imposed upon Plaintiffs,
maintained a level of control that could ultimately translate into a joint employment
arrangement. Bacon, 2015 U.S. Dist. LEXIS 19572, *8. Plaintiffs survive Marriott’s
motion to dismiss.
The motion is DENIED.
IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: September 6, 2017

8