Malee v. Anthony & Frank DiTomaso, Inc. et al

Filing 63

Order. Plaintiff's Motion for Partial Summary Judgment (Related Doc # 53 ) is denied. Judge Christopher A. Boyko on 4/16/2018.(H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CHANEL MALEE,
Plaintiff,
Vs.
ANTHONY & FRANK DITOMASO,
INC., ET AL.,
Defendant.

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CASE NO.1:16CV490
JUDGE CHRISTOPHER A. BOYKO

ORDER

CHRISTOPHER A. BOYKO, J:
This matter is before the Court on Plaintiff Chanel Malee’s Motion for Partial Summary
Judgment. (ECF # 53). For the following reasons, the Court denies Plaintiffs’ Motion.
On March 1, 2016, Plaintiff Chanel Malee filed her Complaint with the Court claiming
Defendants Anthony & Frank DiTomaso, Inc., Anthony DiTomaso and Fred DiTomaso failed to
pay employees overtime at the statutory rate in violation of the Fair Labor Standards Act
(“FLSA”) and Ohio law and failed to pay minimum wage in violation of the FLSA and Ohio
law. Plaintiff asserted these claims on her own behalf and on behalf of other similarly situated
employees. At this point in the litigation, named Plaintiff and five other employees have opted
in to the collective action.
According to the Complaint, Plaintiffs are former employees of a Panini’s franchise

restaurant in Mayfield Heights, Ohio owned and/or operated by Defendants. Plaintiffs contend
Defendants are all employers as defined by the FLSA. Plaintiffs were all servers or bartenders at
Defendants’ restaurant between June 2011 and December 2015. Plaintiff Malee regularly
worked fifty to sixty hours a week but was not paid at the statutory rate of one and one-half
times her regular hourly rate for her hours worked in a typical week that exceeded forty hours.
Plaintiffs allege Defendants did not allow Plaintiffs to clock in until a customer was seated thus,
they failed to accurately record the hours employees worked. Furthermore, they improperly
deducted cash from the server tip jar and from employee paychecks.
Plaintiffs seek to certify a collective action on behalf of a class of employees defined as:
All present and former hourly employees of Defendants who worked as servers
(or other similar job titles) during the three year period immediately preceding the
filing of this complaint to the present.
Plaintiffs’ Motion for Partial Summary Judgment
Plaintiffs seek partial summary judgment on their FLSA and Ohio Minimum Wage
claims for the years 2014 and 2015. According to Plaintiffs, Defendants offer no defense to
Plaintiffs’ claims that they failed to pay overtime at the statutory rate of one and one-half the
regular pay rate for hours worked in a typical work week over forty hours. Plaintiffs also seek
summary judgment based on Defendants’ admitted deductions for: cleaning fees, inventory loss
and shortages, cash shortages, mandatory clothing and unpaid tabs. Defendants admittedly
failed to itemize or report the deductions on Plaintiffs’ pay records.
As a result of Defendants’ improper deductions, Plaintiffs contend their pay rates fell
below Ohio’s minimum wage rates. Furthermore, Defendants paid straight time for overtime
hours worked and deprived employees of tips by making these deductions.

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While Ohio law permits paying employees half the minimum hourly wage for employees
who receive tips, Ohio law requires that wages plus tips equal the full minimum wage rate.
When Defendants deducted the above deductions, Plaintiffs’ expert has calculated Plaintiffs’
actual wages and tips fell below Ohio’s minimum wage rate. Furthermore, the FLSA requires
that minimum wage be paid free and clear of any deductions or kickbacks to the employer.
Defendants’ Opposition
Defendants oppose Plaintiffs’ Motion for Partial Summary Judgment contending genuine
issues of fact preclude summary judgment. Defendants contend Plaintiffs’ testimony
demonstrates there are disputed issues of fact on the challenged deductions. For instance,
several Plaintiffs testified that they were not permitted to work overtime. Several Plaintiffs
testified that employees were responsible for reporting their own tips and Defendants would
have to adjust their hours worked when Plaintiffs failed to clock in or out. Furthermore,
Anthony DiTomaso’s testimony demonstrates genuine issues of fact concerning the amount of
pay deducted from each employee.
Defendants further testify that cleaning fees were not deducted, rather, employees
volunteered to contribute to the cleaning costs rather than do the cleaning themselves. Thus, the
fee was voluntary and not mandatory with no negative consequences for any employee who did
not contribute. Defendants deny deducting anything from wages or tips for the cleaning fee but
instead contend employees who chose to contribute paid the money out of pocket.
Defendants also contest Plaintiffs’ reliance on the Department of Labor Compliance
Report which Defendants argue is not competent evidence under Rule 56 and is unauthenticated
and was never produced in discovery.

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Defendants further challenge Plaintiffs’ reliance on their expert report as the most recent
version, according to Defendants, offers opinions vastly different than the original expert report.
Furthermore, expert reports are not competent evidence for summary judgment and/or trial and
cannot provide the basis for summary judgment.
Finally, Defendants contend Plaintiffs were aware of alleged deductions dating back to
2010. Therefore, the two year statute of limitations for Ohio minimum wage violations prohibits
Plaintiffs from pursuing these claims. Defendants further oppose any finding of liability based
on willfulness or Fred DiTomaso’s individual liability as an employer.
LAW AND ANALYSIS
Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure provides that the Court shall grant
summary judgment if the moving party “shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(a). In
asserting that a material fact can or cannot be genuinely disputed, a party must support that
assertion by either citing to materials contained in the record or show that the materials cited to
do or do not create a genuine issue or material fact. Fed. R. Civ. Pro. 56(c)(1). In its
consideration of a motion for summary judgment, the Court need only consider those materials
cited in the motion. Fed. R. Civ. Pro. 56(c)(3). The trial court is not required to search the entire
record to establish that a genuine issue of material fact exists. Tucker v. Tennessee, 539 F.3d
526, 531 (6th.Cir. 2008) (citing Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th. Cir.
1989). Further, “if a party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact as required by Rule 56(c),” the court may determine that

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that fact is undisputed. Fed. R. Civ. Pro. 56(e)(2).
Having reviewed the Motion, Opposition, Reply and supporting materials, the Court
denies Plaintiffs’ Motion as genuine issues of fact preclude summary judgment. Defendant
Anthony DiTomaso testified on deposition that employees voluntarily paid cash at the end of the
night for cleaning services rather than clean themselves. Anthony testified he did not list the
various itemized deductions on Plaintiffs’ pay records. Servers kept their own tips and entered
their tips in the computer while bartenders pooled their tips. Defendants point the Court to the
pay records cited at Exhibit 8 to Anthony’s deposition contending that the amount of deductions
at issue totals under $1500.00. Plaintiffs dispute this amount and rely on the lost wages
calculations made in their expert’s report. However, that report is unsworn. The Sixth Circuit
has held that unsworn expert reports may not be relied upon by the Court to decide a summary
judgment motion. Sigler v. Am. Honda Motor Co., 532 F.3d 469, 480-81 & 488 (6th Cir. 2008).
The Sigler case was decided before Rule 56 was amended in 2010, which omitted much of the
admissibility requirements found in the previous iteration of Rule 56. However, it is
uncontestable that expert reports are inadmissible at trial. Thus, upon objection, the Notes to
Rule 56 say the burden is on the party offering the otherwise inadmissible evidence to either
show the evidence is admissible or explain in what form it will be admissible. Plaintiffs offer no
explanation on how the expert’s report conclusions will be offered at trial and thus have not met
their burden on summary judgment.
Nor does the expert’s report breakdown the lost wages by the type of allegedly improper
deduction. Therefore, even where there is no disputed issue of fact -ie. failure to pay overtime at
time and a half or failure to keep accurate records, Plaintiffs’ expert report does not permit the

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Court to make a partial summary judgment finding on each individual type of deduction.
Because there are genuine issues of fact whether certain deductions were improper -i.e.- cleaning
fees, the Court finds summary judgment is improper. Therefore, for the following reasons, the
Court denies Plaintiffs’ Motion for Partial Summary Judgment.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: April 16, 2018

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