Hoxhaj v. Michael Cetta, Inc.

Background

Plaintiffs Musa Hoxhaj, Abdou El Shabeiny, and Ricardo Cordero were long-time employees of Sparks, a steakhouse owned by the defendants. Each was hired as a waiter and later promoted to front-of-house manager. Sparks furloughed all employees in March 2020 during the COVID-19 pandemic, reopened temporarily, closed again, and permanently reopened in February 2021. The three plaintiffs were not recalled.

The complaint asserted claims for unpaid overtime under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL); unpaid tips under NYLL § 196-d; spread-of-hours pay; wage notices; age discrimination under the New York City Human Rights Law (NYCHRL) and New York State Human Rights Law (NYSHRL); and religious discrimination under the NYCHRL. Cordero’s age-discrimination claim had already been dismissed by stipulation. In opposing summary judgment, plaintiffs stated that they no longer asserted the wage-notice, wage-statement, or discrimination claims based on failure to recall them to work. They opposed summary judgment only on the overtime, tip, NYCHRL age-discrimination, and NYCHRL religious-discrimination claims.

Overtime claims

The FLSA and NYLL generally require overtime pay for work exceeding 40 hours per week, but exempt certain executive and administrative employees. The employer bears the burden of proving an exemption. A job title alone is not enough; the analysis depends on the employee’s actual salary, duties, authority, and use of judgment.

The parties agreed that each plaintiff earned more than the applicable salary threshold. But the record conflicted about whether their primary duties were managerial, whether they could hire, fire, or discipline employees, whether their recommendations received particular weight, and whether scheduling and assignment tasks required independent judgment. Plaintiffs offered evidence that they spent most of their time serving customers and that their scheduling and assignment duties followed preexisting, ministerial rules.

The court held that genuine disputes of material fact prevented summary judgment on whether plaintiffs qualified for either the executive or administrative exemption. It therefore denied summary judgment on the FLSA and NYLL overtime claims.

Tip claim

Plaintiffs alleged that customers sometimes intended tips for them, but the restaurant transferred those tips into a tip pool for waiters. Defendants argued that plaintiffs were either agents of the restaurant and therefore barred from the pool, or were managers whom the restaurant could exclude from the pool.

The court recognized factual disputes about whether plaintiffs were “agents” under NYLL § 196-d, based on their actual supervisory responsibilities. But it ruled that those disputes were not material because § 196-d does not require an employer to include every otherwise eligible employee in a tip pool. The statute prohibits employers and their agents from retaining employees’ gratuities, but it does not give every eligible employee a right to participate in a tip pool. The court concluded that Sparks’s redistribution of tips to other tip-eligible employees did not violate the statute.

The court granted summary judgment on the unpaid-tip claim.

Religious-discrimination claims

Hoxhaj and El Shabeiny identified themselves as Muslim and alleged that Steven Cetta repeatedly made hostile comments about Islam and Muslim religious practices. El Shabeiny testified that Steven Cetta repeatedly cursed about Muslim people and criticized Muslim employees’ prayer practices. Hoxhaj described repeated comments that Islam was bad, that Muslim people were crazy, and related remarks about prayer and Ramadan. Hoxhaj also testified that Michael Cetta endorsed some of Steven Cetta’s comments.

Under the NYCHRL, a plaintiff need only provide evidence from which a reasonable jury could find that the plaintiff was treated less well because of religion. The plaintiff need not show termination, demotion, or another traditional adverse employment action. The court ruled that the evidence could allow a jury to find that El Shabeiny and Hoxhaj were treated less well because of their religion and that the alleged conduct was more than petty slights or trivial inconveniences. Some older incidents were time-barred, including incidents involving a cook and a former temporary employee, but the court considered evidence of more recent conduct.

The court denied summary judgment on Hoxhaj’s and El Shabeiny’s NYCHRL religious-discrimination claims.

Age-discrimination claims

Hoxhaj and El Shabeiny alleged that Michael Cetta responded to requests for raises with comments that they were too old to be hired elsewhere and that their next stop was an old-age home or nursing home. The court held that a reasonable jury could find that these repeated comments, allegedly made by a supervisor in connection with raise requests, showed that plaintiffs were paid less at least partly because of their age.

The court denied summary judgment on Hoxhaj’s and El Shabeiny’s NYCHRL age-discrimination claims.

Other claims and disposition

Because plaintiffs did not oppose summary judgment on their remaining claims, the court treated those claims as abandoned and granted summary judgment on them. The conclusion specifically states that summary judgment was granted on the unpaid-tip, spread-of-hours, wage-notice, and NYSHRL discrimination claims. It denied summary judgment on the FLSA and NYLL overtime claims and the NYCHRL age- and religious-discrimination claims. The order directed the clerk to close the defendants’ summary-judgment motion docket entry.