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Angelis v. National Entertainment Group, LLC

United States District Court, S.D. Ohio, Eastern Division

December 10, 2019


          Deavers Magistrate Judge



         This 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 GRANTED.

         I. BACKGROUND

         National 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, 6.

         Ms. De 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).

         Plaintiff 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).


         The 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 (2014).

         The 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).

         At the 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.

         At this 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).

         At the 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).

         III. ...

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