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Torres v. Dino Palmieri Salons, Inc.

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

December 18, 2019

DAHIANNA TORRES, et al., Plaintiffs,
v.
DINO PALMERI SALONS, INC., , Defendants.

          MEMORANDUM OPINION AND ORDER

          DONALD C. NUGENT, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Named Plaintiffs' Motion for Conditional Certification, Expedited Opt-In Discovery, and Court-Supervised Notice to Potential Opt-In Plaintiffs. (ECF #6). Defendants filed a partial opposition to the motion, and Plaintiffs filed a Reply. (ECF #18, 23). For the reasons that follow, Plaintiffs Motion is GRANTED with conditions.

         I. PROCEDURAL AND FACTUAL BACKGROUND

         The Named Plaintiffs, Dahianna Torres, Chelsea Amata, and Katie Kauble, brought this action on behalf of themselves and "all others similarly situated," claiming that Defendants, Dino Palmieri and Dino Palmieri Salons Inc., ("Dino Palmieri") had policies and practices in place which resulted in violations of the Fair Labor Standards Act ("FLSA"). Specifically, Plaintiffs claim that Dino Palmieri did not pay its hourly, non-exempt employees wages for time spent attending mandatory training classes, and that this violated minimum wage and overtime pay requirements under the Act. In addition, Plaintiffs claim that Dino Palmieri took deductions from employee pay when they did not sell a minimum amount of product, and that these deductions effectively lowered Plaintiffs pay below the minimum wage required under the FLSA. The currently pending motion seeks to conditionally certify this action as a collective action for both of these claims, and asks the Court to impose approved procedures for notifying all putative plaintiffs of their right to opt-in to this collective action.

         II. DISCUSSION

         A. Standard of Review

         The Fair Labor Standards Act ("FLSA") seeks to provide "specific minimum protections to individual workers" and to ensure that each covered worker receives a "fair day's pay for a fair day's work Barrentine v. Arkansas-Best Freight Sys. Inc., 450 U.S. 728, 739 (1981). The Act allows one or more employees to bring an enforcement action on their own behalf and as a representative for other similarly situated employees. 29 U.S.C. §216(b). Many courts within and without the Sixth Circuit have adopted a two-stage process for determining whether an FLSA action should proceed as a collective action. See, e.g., Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 547 (6th Cir. 2006). In this process, the Court determines based on the complaint and some modest factual allegations, whether there is a colorable basis for their claim that the putative class is "similarly situated" with regard to plausibly alleged claims. If so, the Court generally permits opt-in notification and additional discovery. The parties agree that this standard is "fairly lenient" and typically results is conditional certification of the class for purposes of notification. At this stage, the existence of significant individualized issues does not preclude conditional certification. See, White v. MPW Indus. Servs., Inc., 236 F.R.D. 363, 367 (E.D. Tenn. 2006).

         In any case, the statutory standard for bringing a collective action under the FLSA is that the opt-in plaintiffs must be "similarly situated," and it should not generally rely on any assessment of the merits of the case. See, O'Brien v. Ed Donnelly Enter., Inc., 575 F.3d 567, 585 (6th Cir. 2009); Creely v. HCR ManorCore, Inc., 789 F.Supp.2d 819 (2011) at 826. This does not mean they must be identical, but the plaintiff has the burden of showing that the putative class is similarly situated with regard to the claims asserted.

         Both parties agree that this case should be conditionally certified as a collective action. They have minor disagreements, however, on how the class(es) should be defined. The scope of a conditional class is within the Court's sound discretion. In re City of Memphis, 293 F.3d 345, 351 (6th cir. 2002). Trial courts, therefore, may narrow the scope of proposed classes that have been too broadly defined by the representative Plaintiffs. See, e.g., Gomez v. ERMC Property Mgmt, Co., LLC, 2014 WL 1513945, at *2 (N.D. Ohio Apr. 16, 2004); Engel v. Burlington Coat Fact. Direct Corp., 2013 WL 2417979, at *4 (S.D. Ohio June 3, 2013).

         The Court finds that the following class definitions appropriately address the Plaintiffs' claims, at this conditional stage of certification, while taking into account the legal limitations of such claims[1]:

Class One: All former and current stylists (including trainees and cosmetologists) employed by Dino Palmieri Salons, Inc., who attended training classes anytime from [three years, four months and nine days from the date of this order][2] through the present, but were not paid at least minimum wage for any workweek[3] during which those classes occurred.
Class Two: All former and current stylists (including trainees and cosmetologists) employed by Dino Palmieri Salons, Inc. from [three years, four months and nine days from the date of this order] through present, who had money deducted from their pay for fees (including "training fees") or for charge backs related to the amount of product they sold, which individually or in combination caused their pay to drop below minimum wage for any workweek.

         Within a week of this Order, Defendants shall provide the Representative Plaintiffs with discovery containing the identity, contact information (including last known home address with zip code and last known email address), and pertinent employment dates of all former and current employees who could potentially meet the above defined criteria for inclusion in this collective action. Defendants shall further identify which class(es) each identified individual may fit into. Identification information shall not be withheld from Plaintiffs on the basis of any employee's alleged agreement to arbitrate, or the inclusion of any alleged bonus or deferred payments in the employee's wage calculations.

         C. Notification

         Plaintiffs have requested that this Court impose procedures for opt-in notification, but have not provided a proposed notice. Defendants have provided a proposed notice incorporating their class definitions and desired terms. Aside from once again challenging the Defendants' proposed class definitions, Plaintiffs did not make any specific objections to the Defendants' proposed notice form. Based upon the Defendants' proposal, the arguments of the parties, and the Court's review of the law, the Court hereby finds that the notices proposed by the Defendant shall be altered as follows.

         Class One:

         NOTICE TO POTENTIAL PLAINTIFFS OF RIGHT TO CLAIM UNPAID WAGES

         TO: All former and current stylists (including trainees and cosmetologists) employed by Dino Palmieri Salons, Inc., who attended training classes anytime from [three years, four months and nine days from the date of this order] through the present, but were not paid at least minimum wage for any workweek during which those classes occurred.

         RE: Your right to join a lawsuit seeking to recover unpaid minimum wage compensation, interest, and additional penalty damages.

         1. PURPOSE OF THIS NOTICE

         The purpose of this Notice is to inform you of your right to participate in a lawsuit, seeking unpaid wages, from Dino Palmieri Salons, Inc. The lawsuit raises claims under the Fair Labor Standards Act ("FLSA") for unpaid wages.

         2. DESCRIPTION OF THE ACTION

         On June 27, 2019, an action was filed against Defendants Dino Palmieri Salons, Inc. and Dino Palmieri in the Court of Common Pleas for Cuyahoga County, Ohio. The action is now pending in the United States District Court for the Northern District of Ohio, as Case No. 1:19-cv-01501.The action was filed on behalf of the named Plaintiffs Dahianna Torres, Dena Marinelli, Chelsea Amata, Katie Kauble and all other similarly-situated individuals.

         Plaintiffs were previously employed by Defendants as stylists. The action alleges that Defendants violated the FLSA by not properly paying its former and current stylists, or similarly situated employees, proper minimum wage for all of the workweeks they worked. Plaintiffs allege that they and all other similarly-situated individuals are entitled, under the FLSA, to recover from Defendants: (a) unpaid minimum wages; (b) liquidated damages; and © attorneys' fees and costs.

         Defendants deny the charges and believe they have properly paid their employees.

         The Court has signed an agreed conditional certification of this class. The Court has not finally determined, however, whether Plaintiffs or Defendants are correct. Your right to participate in the case has been determined, but there has not been any determination of anyone's right to actually recover wages.

         3. YOUR RIGHT TO ...


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