TRACEY LAZO; JAMEN HARPER; MUSTAPHA JARRAF, Plaintiffs, Appellants,
SODEXO, INC., Defendant, Appellee. NY'COLE YOUNG THOMAS, Plaintiff,
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. George A. O'Toole, Jr., U.S. District
A. Prisby, with whom Kajko, Weisman & Colasanti, LLP,
John P. Regan, and Employee Rights Group, LLC were on brief,
Douglas J. Hoffman, with whom Jonathan R. Shank and Jackson
Lewis P.C. were on brief, for appellee.
Lynch, Kayatta, and Barron, Circuit Judges.
KAYATTA, CIRCUIT JUDGE.
of a food services and facilities company sued the company
for alleged violations of the Massachusetts Tips Act. The
employees sought class certification, which the district
court denied. Three individual cases proceeded to summary
judgment, at which point each subsequently failed. The
plaintiffs now appeal the class-certification and
summary-judgment rulings. For the following reasons, we
affirm the entry of summary judgment without
reaching the merits of the class certification issue.
Inc. provides food services and facilities management to a
variety of educational, health care, and business
institutions. It operates at various locations throughout
Massachusetts, including at One Lincoln Street in Boston. At
One Lincoln, Sodexo has two clients: K&L Gates LLP and
State Street Bank. Sodexo operates a cafeteria for these
clients' employees. It also operates an Executive Dining
Room ("EDR") for both clients, offering on-site
dining and catering, as well as non-direct services such as
drop-off catering and unmanned buffets. These clients pay the
invoices from Sodexo. Plaintiffs Tracey Lazo, Jamen Harper,
and Mustapha Jarraf worked for Sodexo in the EDR in service
capacities (e.g., as wait staff). Each began working
in the EDR prior to September 2015.
June 2008, Sodexo has subjected any orders placed through the
EDR to an eighteen percent "administrative charge."
Sodexo retains the proceeds generated from this charge. The
administrative charge appears on invoices seen by the
individuals who book the order, not the people dining in the
EDR. As of September 2015, invoices for EDR services state:
"The administrative charge does not represent a tip or
service charge for wait staff employees or bartenders."
There is no evidence these invoices were seen by people
also operates at the Plimoth Plantation in Plymouth,
Massachusetts. Plaintiff Jarraf worked at Plimoth as a
server. At Plimoth, Sodexo provides catering for private
events such as weddings, showers, and meetings. From 2009 to
2015, invoices for these events contained a twenty percent
"staffing charge" or "support charge."
The invoices stated that the charge was "not a gratuity,
but covers labor expenses for staffing your event and may
exceed our actual labor cost." In October 2015, Sodexo
changed the language to read:
[A]ll food and beverage is subject to a 20% administrative
fee and applicable state and local tax. The administrative
fee does not represent a tip or service charge paid directly
to wait staff, employees or bartenders but is a charge to
cover our operational costs and no additional gratuity is
plaintiffs brought suit against Sodexo for alleged violations
of the Massachusetts Tips Act, Mass. Gen. Laws ch. 149,
§ 152A. In a nutshell, their claim is that the various
administrative, support, and staffing charges belonged to
them as tips. After conducting relevant discovery, the
plaintiffs moved for class certification. Their proposed
class encompassed "[a]t least 604 Sodexo food and
beverage wait staff and service employees working at
thirty-five (35) Massachusetts Sodexo locations where
[Sodexo] has imposed, and improperly retained, a 'service
charge,' on patron food and beverage purchases." The
district court denied the motion for lack of sufficient
commonality and typicality. See Lazo v.
Sodexo, Inc., No. CV 15-13366-GAO, 2017 WL 5147098,
at *5 (D. Mass. Nov. 6, 2017); see also Fed.R.Civ.P.
three individual plaintiffs' cases proceeded to summary
judgment, at which point the district court held that
Sodexo's actions at both One Lincoln and Plimoth
Plantation were protected under the safe harbor provision of
the Tips Act and granted the defendants' summary-judgment
motion. See Lazo v. Sodexo, Inc.,
No. CV 15-13366-GAO, 2018 WL 4696740, at *3-4 (D. Mass. Sept.
plaintiffs now appeal the district court's