10-4912-cv
Barenboim v. Starbucks Corp.

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 21st day of November, two thousand thirteen.

PRESENT: RALPH K. WINTER,
         REENA RAGGI,
         DEBRA ANN LIVINGSTON,
                   Circuit Judges.
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JEANA BARENBOIM, JOSE ORTIZ, on behalf of
themselves and all others similarly situated,
                            Plaintiffs-Appellants,

                               v.                                                       No. 10-4912-cv

STARBUCKS CORPORATION,
                 Defendant-Appellee.
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FOR APPELLANTS:                                  Shannon Liss-Riordan, Lichten & Liss-Riordan, P.C.,
                                                 Boston, Massachusetts; Daniel Maimon Kirschenbaum,
                                                 Joseph, Herzfeld, Hester & Kirschenbaum LLP, New
                                                 York, New York.

FOR APPELLEE:                                    Daniel L. Nash, Nathan J. Oleson, Kelly M. Scindian,
                                                 Akin Gump Strauss Hauer & Feld LLP, Washington,
                                                 D.C.; Samidh Guha, Akin Gump Strauss Hauer & Feld
                                                 LLP, New York, New York; Rex S. Heinke, Gregory W.
                                                 Knopp, Katharine J. Galston, Akin Gump Strauss Hauer
                                                 & Feld LLP, Los Angeles, California.
       Appeal from a judgment of the United States District Court for the Southern District

of New York (Laura Taylor Swain, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on March 7, 2011, is AFFIRMED.

       Plaintiffs Jeana Barenboim and Jose Ortiz (collectively, “Barenboim”) appeal from

an award of summary judgment to defendant Starbucks Corporation (“Starbucks”) on their

putative class action claim that Starbucks’s policy of allowing shift supervisors to participate

in store tip pools violates N.Y. Lab. Law § 196-d. On October 13, 2012, this court certified

two questions to the New York Court of Appeals pursuant to 2d Cir. L.R. 27.2 and N.Y.

Comp. Codes R. & Regs. tit. 12, § 500.27(a) regarding the interpretation of § 196-d. See

Barenboim v. Starbucks Corp., 698 F.3d 104 (2d Cir. 2012). Having received the Court of

Appeals’ answers to those questions, see Barenboim v. Starbucks Corp, 2013 N.Y. Slip Op.

04754, 2013 WL 3197602 (June 26, 2013), we now review the district court’s award of

summary judgment de novo, resolving all ambiguities and drawing all inferences in favor of

the nonmovant, and we will affirm only if the record reveals no genuine dispute of material

fact. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48

(1986); Nagle v. Marron, 663 F.3d 100, 104–05 (2d Cir. 2011). We assume the parties’

familiarity with the facts and record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.




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       Section 196-d states that “[n]o employer or his agent or an officer or agent of any

corporation, or any other person shall demand or accept, directly or indirectly, any part of the

gratuities, received by an employee, or retain any part of a gratuity or of any charge

purported to be a gratuity for an employee.” N.Y. Lab. Law § 196-d. It further states that

§ 196-d shall not be construed as affecting “the sharing of tips by a waiter with a busboy or

similar employee.” Id.

       In response to our certified questions, the Court of Appeals rejected Barenboim’s

argument that § 196-d bars any employee with “even the slightest degree of supervisory

responsibility” from sharing tips. Barenboim v. Starbucks Corp, 2013 N.Y. Slip Op. 04754,

at *6. Rather, the Court of Appeals concluded that, under § 196-d, “employer-mandated tip

splitting should be limited to employees who, like waiters and busboys, are ordinarily

engaged in personal customer service, a rule that comports with the expectations of the

reasonable customer.” Id. (alteration and internal quotation marks omitted). Thus, “an

employee whose personal service to patrons is a principal or regular part of his or her duties

may participate in an employer-mandated tip allocation arrangement under Labor Law

§ 196-d, even if that employee possesses limited supervisory responsibilities.” Id. at *7. At

the same time, however, the Court of Appeals recognized that “there comes a point at which

the degree of managerial responsibility becomes so substantial that the individual can no

longer fairly be characterized as an employee similar to general wait staff within the meaning

of Labor Law § 196-d.” Id. The court concluded that “the line should be drawn at

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meaningful or significant authority or control over subordinates” and indicated that such

authority or control “might include the ability to discipline subordinates, assist in

performance evaluations or participate in the process of hiring or terminating employees, as

well as having input in the creation of employee work schedules, thereby directly influencing

the number and timing of hours worked by staff as well as their compensation.” Id.

       In this case, it is undisputed that Starbucks’s shift supervisors spend a majority of their

time performing the same duties as baristas, and are primarily responsible for serving food

and beverages to customers. As their title indicates, shift supervisors also have some

supervisory responsibilities, such as assigning baristas to particular positions during their

shifts, administering break periods, directing the flow of customers, and providing feedback

to baristas about their performance. Further, shift supervisors are authorized to open and

close stores, to change the cash register tills, and to deposit money in the bank. But the

limited nature of these supervisory duties, considered together with the shift supervisors’

“principal” responsibilities to provide “personal service to patrons,” cannot admit a finding

of the “meaningful or significant authority or control over subordinates” contemplated by

§ 196-d. Id. Accordingly, we identify no genuine dispute of material fact as to whether §

196-d permits shift supervisors to participate in Starbucks’s tip pools. It does.

       In urging otherwise, Barenboim argues that shift supervisors perform three of the four

tasks listed as examples by the Court of Appeals in describing what constitutes meaningful

or significant authority over subordinates for purposes of § 196-d. Specifically, although

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conceding that shift supervisors do not participate in the process of hiring and firing

employees, Barenboim points out that they (1) discipline baristas by verbally correcting their

mistakes or coaching their job performance, (2) “advise managers regarding the baristas’ job

performance,” and (3) “coordinate baristas’ schedules and breaks.” Barenboim Supplemental

Br. 4. Barenboim also points out that shift supervisors oversee between three and six

baristas during a given shift. The record, however, demonstrates that these supervisory

responsibilities are limited. Thus, while shift supervisors may be able to coach baristas, they

cannot formally discipline them. Moreover, shift supervisors have no input into the creation

of the work schedule; they may only designate break times during a scheduled shift or send

a barista home from a shift if he or she is not needed. And, although they supervise baristas,

shift supervisors’ primary job functions are the same as baristas. On this record, no

factfinder could conclude that shift supervisors have such a “substantial” degree of

“managerial responsibility” that they are no longer akin to “general wait staff” under § 196-d.

Id. at *7. The district court therefore correctly awarded summary judgment to Starbucks.

       We have considered Barenboim’s remaining arguments on appeal and conclude that

they are without merit. The judgment of the district court is AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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