United States District Court, S.D. Ohio, Eastern Division
Deavers Magistrate Judge
OPINION AND ORDER
ALGENON L. MARBLEY CHIEF UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on Plaintiff Stephanie De
Angelis' Motion for Conditional Class Certification,
Expedited Discovery, and Issuance of Notice (ECF No. 44). For
the reasons stated below, Plaintiff's Motion is
Entertainment Group LLC
(“Vanity”) is an adult
entertainment club in Columbus, Ohio. (ECF No. 1 at 2). Ms.
De Angelis worked at Vanity as a dancer from April 2016 to
February 2017. (Id. at 5; ECF No. 39). Ms. De
Angelis alleges that Vanity did not pay its dancers any wages
by misclassifying all of its dancers as independent
contractors, rather than employees. Id. She further
alleges that at the end of each night, Vanity took a cut from
all tips made by the dancers, and the dancers were required
to split their tips with other employees. Id. at 3,
Angelis filed this lawsuit as a collective and class action
against Vanity on October 23, 2017, alleging violations of
the Fair Labor Standards Act of 1983 (“FLSA”), 29
U.S.C. §§ 201, et seq., the Ohio Minimum
Fair Wage Standards Act (“OMFSWA”), O.R.C.
§§ 4111.01, et seq., and the Ohio
Semi-Monthly Payment Act, O.R.C. § 4113.15, as well as
common law unjust enrichment by failing to pay dancers
minimum wage for all hours worked, including failure to pay
overtime. (ECF No. 1). On January 2, 2018, Vanity answered
the Complaint and brought counterclaims against Ms. De
Angelis for breach of contract and unjust enrichment. (ECF
No. 7). The same day, Vanity filed a Motion to Dismiss for
Lack of Jurisdiction, arguing that Ms. De Angelis never
danced at Vanity, and therefore does not have standing to
bring the instant lawsuit. (ECF No. 6). On August 10, 2018,
this Court held an evidentiary hearing to determine for
purposes of standing whether Ms. De Angelis danced at Vanity.
(See ECF No. 33). On September 11, 2018, this Court
issued an order denying Vanity's Motion to Dismiss for
Lack of Jurisdiction and determining that Ms. De Angelis did
work at Vanity. (ECF No. 39).
thereafter filed a motion for conditional class certification
also requesting expedited discovery and issuance of notices
to prospective class members. (ECF No. 44). Vanity opposes
Plaintiff's motion arguing: (1) that Plaintiff has failed
to submit adequate evidence in support of her motion and that
the affidavit she has submitted is conclusory boilerplate;
(2) that Plaintiff's testimony at the hearing contradicts
her affidavit; and (3) Plaintiff is not similarly situated to
members of the proposed class because she did not sign any
agreements with Vanity and “actual Vanity
dancers” are required to sign agreements that contain
an arbitration clause. (ECF No. 45).
STANDARD OF REVIEW
Fair Labor Standards Act requires employers to pay their
employees “at a rate not less than one and one-half
times the regular rate” for work exceeding forty hours
per week. 29 U.S.C. § 207(a)(1). Congress's primary
purpose in enacting the FLSA “was to aid the
unprotected, unorganized and lowest paid of the nation's
working population; that is, those employees who lacked
sufficient bargaining power to secure for themselves a
minimum subsistence wage.” Moran v. Al Basit
LLC, 788 F.3d 201, 204 (6th Cir. 2015) (quoting
Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 707
n.18 (1945)). The FLSA “was enacted by Congress to be a
broadly remedial and humanitarian statute, ” Dunlop
v. Carriage Carpet Co., 548 F.2d 139, 143 (6th Cir.
1977), and in interpreting the FLSA the Supreme Court has
long noted that the statute attempted to mitigate the effects
of the “unequal bargaining power . . . between employer
and employee, ” Brooklyn Sav. Bank, 324 U.S.
at 706. Due to the “remedial nature of this statute,
” the employee's burden “of proving that he
performed work for which he was not properly
compensated” should not be made “an impossible
hurdle for the employee.” Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680, 686-87 (1946), superseded
by statute on other grounds as recognized in Integrity
Staffing Solutions, Inc. v. Busk, 135 S.Ct. 513, 516-17
FLSA provides that a court may certify a collective action
brought “by any one or more employees for and in behalf
of himself or themselves and other employees similarly
situated.” 29 U.S.C. § 216(b). Similarly situated
employees are permitted to “opt into” the
collective action. Comer v. Wal-Mart Stores, Inc.,
454 F.3d 544, 546 (6th Cir. 2006). The lead plaintiffs bear
the burden to show that the proposed class members are
similarly situated to the lead plaintiff. O'Brien v.
Ed Donnelly Enters., Inc., 575 F.3d 567, 584 (6th Cir.
2009), abrogated on other grounds by Campbell-Ewald Co.
v. Gomez, 136 S.Ct. 663, 669 (2016). The FLSA does not
define “similarly situated” and neither has the
Sixth Circuit. Id. But notably, plaintiffs seeking
to certify a collective action under the FLSA face a lower
burden than plaintiffs seeking class certification under
Federal Rule of Civil Procedure 23. Id. In FLSA
class actions, “class certification typically occurs in
two stages: conditional and final certification.”
Frye v. Baptist Mem'l Hosp., Inc., 495 Fed.Appx.
669, 671 (6th Cir. 2012) (unpublished).
conditional-certification stage, conducted at the beginning
of the discovery process, named plaintiffs need only make a
“modest factual showing” that they are similarly
situated to proposed class members. Waggoner v. U.S.
Bancorp, 110 F.Supp.3d 759, 764 (N.D. Ohio 2015)
(quoting Comer, 454 F.3d at 547). The standard at
the first step is “fairly lenient . . . and typically
results in ‘conditional certification' of a
representative class.” Comer, 454 F.3d at 547
(internal citations ommitted). Courts generally consider
factors such as “employment settings, individual
defenses, and the fairness and procedural impact of
certification.” Frye, 495 Fed.Appx. at 672
(citing O'Brien, 575 F.3d at 584). Plaintiffs
are similarly situated “when they suffer from a single,
FLSA-violating policy, and when proof of that policy or of
conduct in conformity with that policy proves a violation as
to all the plaintiffs.” O'Brien, 575 F.3d
at 585. Showing a “unified policy” of violations
is not required. Id. at 584. The named plaintiff
“need only show that [her] position is similar, not
identical, to the positions held by the putative class
members.” Lewis v. Huntington Nat'l Bank,
789 F.Supp.2d 863, 867-68 (S.D. Ohio 2011); see also
Comer, 454 F.3d at 546-57.
stage, a court “does not generally consider the merits
of the claims, resolve factual disputes, or evaluate
credibility.” Waggoner, 110 F.Supp.3d at 765
(citing Swigart v. Fifth Third Bank, 276 F.R.D. 210,
214 (S.D. Ohio 2011)). In determining conditional
certification, courts have considered “whether
potential plaintiffs were identified; whether affidavits of
potential plaintiffs were submitted; and whether evidence of
a widespread . . . plan was submitted.” Castillo v.
Morales, Inc., 302 F.R.D. 480, 486 (S.D. Ohio 2014)
(quoting H & R Block, Ltd. v. Housden, 186
F.R.D. 399, 400 (E.D. Tex. 1999)). If conditional
certification is granted, “plaintiffs are permitted to
solicit opt-in notices, under court supervision, from current
and former employees.” Cornell v. World Wide Bus.
Servs. Corp., No. 2:14-CV-27, 2015 WL 6662919, at *1
(S.D. Ohio Nov. 2, 2015).
final certification stage, conducted after the conclusion of
discovery, courts “examine more closely the question of
whether particular members of the class are, in fact,
similarly situated.” Comer, 454 F.3d at 547.
At this stage, the court has much more information on which
to base its decision of whether the proposed plaintiffs are
similarly situated and, “as a result, it employs a
stricter standard.” Id. (alteration, quotation
marks, and citation omitted).