Nehmelman v. Penn National Gaming, Inc.
Filing
93
MEMORANDUM Opinion and Order Signed by the Honorable Sheila M. Finnegan on 9/29/2011.Mailed notice(lxs, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROSA NEHMELMAN for herself and on
behalf of similarly situated others,
Plaintiff,
v.
PENN NATIONAL GAMING, INC. and
EMPRESS CASINO JOLIET d/b/a
HOLLYWOOD CASINO JOLIET,
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No. 11 C 23
Magistrate Judge Finnegan
Defendants. )
MEMORANDUM OPINION AND ORDER
Plaintiff Rosa Nehmelman has filed suit on behalf of herself and similarly situated
others seeking to recover unpaid wages allegedly due under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201 et seq., and the Illinois Minimum Wage Law (“IMWL”), 820
ILCS 105/1 et seq. Specifically, Plaintiff charges Defendants Penn National Gaming, Inc.
(“PNGI”) and its wholly-owned subsidiary Empress Casino Joliet d/b/a Hollywood Casino
Joliet (“Empress”) (collectively “Defendants”) with violating both wage statutes by failing to
pay employees in the Games Department for all hours worked in excess of 40 per week.
Plaintiff now moves for judicially supervised notice as to Empress under 29 U.S.C. §
216(b). For the reasons set forth below, the motion is granted. Empress’s related motion
to strike allegations in two of Plaintiff’s supporting declarations is denied.
BACKGROUND1
A.
Declarations
In support of her motion for conditional certification, Plaintiff initially submitted her
own declaration, and a declaration from Ross Sansone, a former Empress employee who
filed a consent to be a party in this case. (Doc. 45-1). Empress in turn submitted twelve
declarations from current employees (described below) to oppose certification. Empress
also moved to strike significant portions of the declarations from Plaintiff and Sansone,
arguing that certain statements were conclusory, speculative, vague and/or not based on
personal knowledge, and that other statements constituted inadmissible hearsay. (Doc.
48). When the parties appeared for a hearing on August 11, 2011 (on an unrelated
motion), this Court voiced concerns regarding the sufficiency of the declarations from
Plaintiff and Sansone.2 Plaintiff then supplemented the record with new declarations from
former Empress employees and Opt-In plaintiffs (the “Opt-Ins”) Gustavo DeGuzman,
1
The parties have consented to the jurisdiction of the United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c).
2
Given the lenient standard for conditional certification and the preliminary
stage of the proceeding, the Court stated that it was not prepared to disregard information
in a declaration solely because it did not meet the standards for admissibility at trial (though
this could go to its weight). At the same time, the Court observed that several of the
statements in the declarations of Plaintiff and Sansone were quite broad or conclusory such
that the Court had no idea what they were based on. Further, the declarations appeared
internally inconsistent in certain respects, and Plaintiff had subsequently corrected a
number of her declaration statements during a deposition. While the Court indicated that
Plaintiff was free to stand solely on the two declarations as the basis for conditional
certification, it allowed Plaintiff an opportunity to submit additional declarations on an
expedited basis to address the Court’s concerns. Plaintiff did so. In addition, Empress
submitted Plaintiff’s deposition for consideration. To the extent the Court cites any portion
of Plaintiff’s or Sansone’s declarations, Empress’s objections are overruled. In all other
respects the motion to strike is denied as moot.
2
William Rapka and Bruce Bender.3 (DeGuzman Decl., Doc. 81; Rapka Decl., Doc. 83, Ex.
D; Bender Decl., Doc. 83, Ex. E). The declarations submitted by Empress are from:
Human Resources Manager Margaret Deering; Casino Operations Managers John Allison,
Chris Costa, Albert Sikirdji and Kevin Taylor; Casino Controller Gordon Hinckle; Dealers
David Herron, Marianna Heredia and Franklin Foster; and Slot Representatives Vickie
Hejna, Sheryl McMillin and Cordelia Saunders. (Deering Decl., Doc. 55-1; Allison Decl.,
Doc. 55-9; Costa Decl., Doc. 55-2; Sikirdji Decl., Doc. 55-7; Taylor Decl., Doc. 55-11;
Hinckle Decl., Doc. 55-10; Herron Decl., Doc. 55-3; Heredia Decl., Doc. 55-4; Foster Decl.,
Doc. 55-5; Hejna Decl., Doc. 55-6; McMillin Decl., Doc. 55-8; Saunders Decl., Doc. 55-12).
Empress also provided the Court with a copy of Plaintiff’s August 9, 2011 deposition
transcript, observing that it contradicted certain statements in her declaration. The relevant
facts are largely drawn from these documents.
B.
Allegations
Plaintiff worked for Empress as a Dealer in the Games Department from June 1992
until she was terminated on December 15, 2010. (Pl. Decl., Doc. 30-2, Ex. 1 ¶¶ 2, 3).
Ross Sansone worked for Empress from February 2009 to April 2011, serving as a Slot
Representative (“Slot Rep”) and Dual Rate Supervisor in the Games Department.
(Sansone Decl., Doc. 46 ¶¶ 2, 3, 5). Gustavo DeGuzman worked for Empress as a Slot
Rep from July 26, 1999 until May 31, 2011. (DeGuzman Decl. ¶ 1). William Rapka worked
3
In her final brief filed on September 21, 2011, Plaintiff submitted a declaration
from current Empress Supervisor JoAnne Jenkins. (Jenkins Decl., Doc. 88-1). Empress
responded with a motion to strike the declaration pursuant to ABA Model Rule 4.2 and Rule
4.2 of the Illinois Rules of Professional Conduct. That motion remains pending, and the
Court has not relied upon the Jenkins declaration in ruling on Plaintiff’s motion for
conditional certification.
3
for Empress from approximately November 1997 until he was discharged in May 2011.
Throughout most of his employment, he served as a Dual Rate Supervisor, spending about
80% of his time working as a Dealer, and about 20% of his time supervising other Dealers.
(Rapka Decl. ¶ 1). Bruce Bender worked as a Dealer for Empress from May 1996 through
August 2010. (Bender Decl. ¶ 1).
Plaintiff, Sansone, DeGuzman and Bender were all paid an hourly rate plus tips, and
were considered non-exempt employees entitled to receive overtime compensation for
hours worked in excess of 40 per week. (Pl. Decl. ¶¶ 5, 6, 14; Sansone Decl. ¶¶ 5, 6, 12;
DeGuzman Decl. ¶¶ 2, 3; Bender Decl. ¶¶ 3, 5). Rapka was also an hourly employee, but
he only received tips when he worked as a Dealer and not as a Supervisor. (Rapka Decl.
¶ 3). All declarants claim that they “have received some overtime compensation, but . . .
have not received overtime compensation for all hours worked” in excess of 40 per week.
(Pl. Decl. ¶ 13; Sansone Decl. ¶ 11; DeGuzman Decl. ¶ 3; Bender Decl. ¶ 5; Rapka Decl.
¶ 5).
Plaintiff and the Opt-Ins contend that Empress follows certain practices and policies
that result in employees in the Games Department not receiving their required overtime
compensation. Plaintiff initially identified seven such policies: (1) Empress has an unwritten
policy requiring employees to clock in 7 minutes before their shifts start, but they are not
paid for those 7 minutes of work; (2) Empress’s Timekeeping Policy requires employees
to clock out no later than 7 minutes after their shifts end, and they are not paid for any work
performed during those 7 minutes; (3) Dealers and Slot Reps work off-the-clock by
attending mandatory pre-shift meetings twice a week for 15 minutes; (4) Empress requires
Dealers and Slot Reps to participate in unpaid training courses outside their regular shifts;
4
(5) Empress pays employees by the shift rather than by the hours reflected on their time
cards; (6) Empress requires employees to change into their uniforms at the casino, which
takes about 45 minutes, but employees do not get paid for any of that pre-shift activity; and
(7) Empress calculates overtime on a two-week rather than weekly basis.
In response to arguments raised by Empress and facts discovered through Plaintiff’s
deposition, Plaintiff has decided to focus on only the first four of these alleged improper pay
practices which, she and the Opt-Ins claim, apply to all similarly situated Empress
employees. In that regard, Plaintiff seeks to represent a class of current and former
Dealers and Slot Reps who worked for Empress and PNGI from January 3, 2008 to the
present. She now asks the Court to approve conditional certification of a collective class
against Empress pursuant to § 216(b) of the FLSA, and to allow her to send notice to other
potential class members.
Empress objects that conditional certification is inappropriate in this case, arguing
that “many policies about which Plaintiff complains are either completely different than
Plaintiff represents, are not unlawful or do not exist at all.” (Doc. 55, at 2). Empress seeks
to strike large portions of the declarations signed by Plaintiff and Sansone on the grounds
that they are based on improper supposition and hearsay rather than personal knowledge.
In addition, Empress claims that the declarations and other evidence it submitted in
opposition to class certification demonstrate that the information provided by Plaintiff and
the Opt-Ins is inaccurate, and that a class-wide determination regarding the impact of the
casino’s policies “is not possible due to the individualized inquiry that would be required.”
(Id.)
5
DISCUSSION
A.
Standard of Review
Section 216(b) of the FLSA provides that employees may bring a collective action
against an employer to recover unpaid overtime compensation on behalf of themselves and
other “similarly situated” employees. 29 U.S.C. § 216(b); Alvarez v. City of Chicago, 605
F.3d 445, 448 (7th Cir. 2010); Blakes v. Illinois Bell Tel. Co., No. 11 C 336, 2011 WL
2446598, at *2 (N.D. Ill. June 15, 2011). Unlike a class action under Rule 23(b), in which
potential plaintiffs are included in the class unless they opt-out, a § 216(b) collective action
requires potential plaintiffs to “affirmatively opt-in to the suit by filing a written consent with
the court.” Alvarez, 605 F.3d at 448. District courts have broad discretion in managing
collective actions, and may facilitate notice to potential plaintiffs in order to implement the
opt-in procedure. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989); Gromek
v. Big Lots, Inc., No. 10 C 4070, 2010 WL 5313792, at *2 (N.D. Ill. Dec. 17, 2010).
“Neither the FLSA nor the Seventh Circuit has set forth criteria for determining
whether employees are ‘similarly situated’” such that notice is appropriate, but most courts
follow a two-step inquiry. Rottman v. Old Second Bancorp, Inc., 735 F. Supp. 2d 988, 990
(N.D. Ill. 2010) (quoting Hundt v. DirectSat USA, LLC, No. 08 C 7238, 2010 WL 2079585,
at *2 (N.D. Ill. May 24, 2010)). At the first step, “the court looks for no more than a ‘minimal
showing’ of similarity.” Howard v. Securitas Security Servs., USA Inc., No. 08 C 2746,
2009 WL 140126, at *5 (N.D. Ill. Jan. 20, 2009). See also Nicholson v. UTi Worldwide, Inc.,
No. 3:09-CV-722-JPG-DGW, 2011 WL 250563, at *2 (S.D. Ill. Jan. 26, 2011) (describing
the burden as a “modest factual showing”). This is a lenient standard, but “a modest
factual showing cannot be founded solely on allegations of the complaint; some factual
6
support must be provided, such as in the form of affidavits, declarations, deposition
testimony, or other documents.” DeMarco v. Northwestern Memorial Healthcare, No. 10
C 397, 2011 WL 3510905, at *1 (N.D. Ill. Aug. 10, 2011) (quoting Anyere v. Wells Fargo,
Co., No. 09 C 2769, 2010 WL 1542180, at *2 (N.D. Ill. Apr. 12, 2010)). A plaintiff must
demonstrate, through these devices, “a factual nexus between the plaintiff and the
proposed class or a common policy that affects all the collective members.” Howard, 2009
WL 140126, at *2.
In making a determination as to similarity, the court need not accept the plaintiff’s
allegations as true as it would with a motion to dismiss. “Rather, the court evaluates the
record before it, including the defendant’s oppositional affidavits, to determine whether the
plaintiffs are similarly situated to other putative class members.” Rottman, 735 F. Supp.
2d at 990 (quoting Hundt, 2010 WL 2079585, at *2). At the same time, the court does not
consider the merits of a plaintiff’s claims, or witness credibility. Marshall v. Amsted Indus.,
Inc., No. 10-CV-0011-MJR-CJP, 2010 WL 2404340, at *3 (S.D. Ill. June 16, 2010); Blakes,
2011 WL 2446598, at *6.
The second step, occurring after discovery, is more stringent. “Once it is known
which employees will be part of the class, the Court must reevaluate the conditional
certification to determine whether there is sufficient similarity between the named and opt-in
plaintiffs to allow the matter to proceed to trial on a collective basis.” Rottman, 735 F.
Supp. 2d at 990 (quoting Jirak v. Abbott Laboratories, Inc., 566 F. Supp. 2d 845, 848 (N.D.
Ill. 2008)). At that time, a defendant may “move to decertify the case or divide the class
into subclasses.” Betancourt v. Maxim Healthcare Servs., Inc., No. 10 C 4763, 2011 WL
7
1548964, at *5 (N.D. Ill. Apr. 21, 2011) (quoting Smallwood v. Illinois Bell Tel. Co., 710 F.
Supp. 2d 746, 753 (N.D. Ill. 2010)).
This case is currently at step one of the analysis, and Plaintiff insists that she has
easily satisfied her lenient burden of showing that she and other Dealers and Slot Reps are
similarly situated with respect to Empress’s policies and pay practices. Empress disagrees,
arguing that Plaintiff’s supporting declarations are deficient, and that she cannot establish
that members of the putative class were similarly affected by the casino policies she
describes.
B.
Factual Nexus Binding the Putative Collective
The Court next turns to whether Plaintiff has sufficiently demonstrated that a
common policy affects all the putative class members and creates a “factual nexus”
between them. Howard, 2009 WL 140126, at *2. As noted, for purposes of this motion,
Plaintiff focuses on four policies:
(1)
Empress has an unwritten policy requiring Dealers and Slot Reps to clock in
7 minutes before their scheduled shifts, but rounds the time so that
employees are not paid for those extra minutes of work;
(2)
Empress has a policy of not compensating Dealers and Slot Reps for closing
activities or for time spent waiting for a shift change (“wait time”) if these take
7 minutes or less, and of rounding the end time to reflect the scheduled, as
opposed to actual, clock out time;
(3)
Dealers and Slot Reps must participate in unpaid meetings before their
scheduled shifts; and
(4)
Dealers4 are not compensated for time spent in job-related training.
(Doc. 58-1, at 9). The Court considers each in turn.
4
Plaintiff has withdrawn her claim that Slot Reps are required to participate in
unpaid training.
8
1.
Time Clock and Rounding Issues
Plaintiff first claims that Empress’s time clock and rounding policies factually bind
the putative class. Specifically, she says that Empress requires employees to clock in 7
minutes before their shifts start, and to clock out no more than 7 minutes after their shifts
end. At the same time, Empress rounds actual clock time to reflect scheduled shift times.
For example, if an employee clocks in at 8:53 a.m. for a 9:00 a.m. shift, then her time is
rounded up to 9:00 a.m. Similarly, if an employee clocks out at 5:07 p.m. for a shift ending
at 5:00 p.m., then her time is rounded down to 5:00 p.m. (Deering Decl. ¶ 13). As a result,
employees who start working immediately after clocking in 7 minutes early do not get paid
for those extra minutes of work. (See, e.g., Doc. 30-2, Ex. B) (showing Plaintiff clocked-in
at 10:53 a.m. on April 12-16, 19 and 20, 2010 but was paid for time starting at 11:00 a.m.).
Similarly, since employees are required to continue working until their games end, their
replacement workers arrive, or they complete various closing activities, they sometimes
work up to 7 minutes past their shift end times, but are not paid for those extra minutes of
work either.5 Plaintiff claims that these policies deprive employees of pay for “at least, 35
minutes of overtime each week, but often more.” (Pl. Decl. ¶ 20).
5
To the extent Plaintiff is arguing that employees sometimes were not paid for
time worked beyond the 7 minutes, this is an issue not of rounding but of a supervisor’s
failure to provide a variance for the late clock out. (See Deering Decl. ¶ 14) (“[I]f a Dealer
was scheduled to work until 5:00 p.m., but did not get tapped out [by his replacement
worker] until 5:10 p.m., the variance would reflect a new end time, which would be rounded
to the next quarter hour, to 5:15 p.m.”). It appears to the Court that individual questions
would predominate as to whether and why particular supervisors did or did not provide
variances in any given situation.
9
a.
Early Clock-In
Plaintiff identifies several Empress employees who told her about the early clock in
policy, including Games Department Director Toni Johnson, and Casino Operations
Managers Chris Costa, Albert Sikirdji and Kevin Taylor. (Pl. Dep., Doc. 79-1, at 81-82).
DeGuzman claims that Supervisors Pamela Nales, Darlene Phillips and Steve Hurdle all
informed him that he had to be at work “on time,” meaning 7 minutes before his shift start
time. Costa and Taylor also told DeGuzman that being “on time” meant clocking in 7
minutes before his shift began. (DeGuzman Decl. ¶ 10). Rapka says that he received the
same information from Costa and another Casino Operations Manager, Greg Mace, and
Bender confirms that Johnson told him about the policy. (Rapka Decl. ¶ 12; Bender Decl.
¶ 11). Rapka and Bender further claim that the managers communicated this policy during
pre-shift briefings attended by other Dealers and Slot Reps. (Id.; Bender Decl. ¶ 11).
In order to ensure that they were “on time,” Plaintiff, DeGuzman, Rapka and Bender
all lined up with other Dealers and Slot Reps “at the time clock to clock in when the time
clock hit seven minutes before the shift began.” (DeGuzman Decl. ¶ 11; Pl. Dep., at 71;
Rapka Decl. ¶ 13; Bender Decl. ¶ 12). Employees who did not follow this policy “would get
an ear full from supervisors” and “[i]f it became a problem it was understood you could be
written up.” (Rapka Decl. ¶ 13; Bender Decl. ¶ 12). Plaintiff testified at her deposition that
if employees did not clock in at the “seven-minute mark,” supervisors would “tell you about
it.” (Pl. Dep., at 77, 79). As Plaintiff explained, “[y]ou might be clocking at 55 [5 minutes
before the shift start time], and you go on the floor. And they’ll tell you, ‘You’re late. You
need to be on the floor on time.’” (Id. at 79).
10
Empress insists that there is no requirement that employees clock in a full 7 minutes
before their shifts start. Rather, the Timekeeping Policy states that employees must clock
in “no earlier than 7 minutes prior to the start of the shift.” (Doc. 30-2, Ex. A) (emphasis
added). Human Resources Manager Deering explains that this gives employees a “grace
period” when clocking in. (Deering Decl. ¶ 12). Contrary to Empress’s suggestion, the
existence of such a policy does not conclusively establish that the casino pays employees
in compliance with the FLSA. See, e.g., Russell v. Illinois Bell Tel. Co., 575 F. Supp. 2d
930, 935 (N.D. Ill. 2008) (“[T]he mere fact that a company has a written overtime policy
does not defeat conditional certification when a plaintiff provides countervailing evidence
of a common policy of not paying for overtime.”).
Empress has also submitted declarations from Casino Operations Managers Costa,
Sikirdji, Allison and Taylor; Dealer and former Slot Rep Hejna; Casino Controller and former
Casino Operations Manager Hinckle; and Slot Rep McMillin, confirming that employees can
clock in anytime during the 7-minute window, including exactly at the scheduled start time.
(Costa Decl. ¶ 7; Hejna Decl. ¶ 6; Sikirdji Decl. ¶¶ 8, 9; McMillin Decl. ¶ 6; Allison Decl. ¶
6; Hinckle Decl. ¶ 13; Taylor Decl. ¶ 3). In that regard, time cards from Hejna and from
Dealer Franklin Foster reflect that both employees sometimes clocked in less than 7
minutes early. (Doc. 63, Exs. 1(A) and (B)).
Even more damaging to Plaintiff’s claim, Empress says, is the fact that Bender’s and
Rapka’s time cards also reflect that both employees “clocked in at a variety of times
between 7 minutes before the scheduled shift and the start of the shift.” (Doc. 87, at 7).
Between October 23 and December 17, 2009, Bender worked 38 shifts, but he only clocked
in 7 minutes early on 11 occasions. On 12 occasions, he clocked in 6 minutes early, and
11
on 8 occasions, he clocked in 5 minutes early. (Deering Decl. 2, Doc. 87-1 ¶ 34; Doc. 87-1,
Ex. R). Rapka’s time records from April 13 to June 4, 2008 similarly show that over the
course of 36 shifts, he clocked in 7 minutes early only twice. The rest of the time, he
clocked in between 3 and 5 minutes early. (Id. ¶¶ 32, 33; Doc. 87-1, Ex. Q).
At this stage of the proceedings, and considering all the evidence presented, the
Court is not convinced that Empress has unequivocally shown that employees were not
directed to clock in 7 minutes before their shift; indeed, it appears that a number of Dealers
and Slot Reps generally did so. Cf. Adair v. Wisconsin Bell, Inc., No. 08 C 280, 2008 WL
4224360, at *5 (E.D. Wis. Sept. 11, 2008) (defendant provided “unequivocal evidence that
it does not calculate its employees wages based on the time they are logged onto the
phone system.”). With only a three-month snapshot of time records from Rapka and
Bender, which were hand-selected by Empress, such records are not dispositive.
Empress makes much of Plaintiff’s deposition testimony that the 7-minute rule was
not uniformly enforced. When asked whether there are “people who can get away with”
clocking in less than 7 minutes before a shift start, Plaintiff responded, “[d]efinitely. . . .I’ve
seen people that come in late, and they just tell them not to worry about it . . . . They just
give them the first break.” (Pl. Dep., at 83). Plaintiff later confirmed that the 7-minute policy
“applies to some people, and it doesn’t apply to other people.” (Id. at 253). The mere fact
that some supervisors may have exhibited favoritism in enforcing the rule, however, does
not unequivocally prove that the rule does not exist or is incapable of class-wide analysis.
The time records will reveal who abided by the alleged rule and who did not.
12
Under the lenient standard applicable here, the Court is persuaded that Plaintiff has
presented sufficient evidence that she is similarly situated to other Dealers and Slot Reps
with respect to an unwritten policy requiring them to clock in 7 minutes early.
b.
Rounding
Turning to the rounding policy, Empress acknowledges that the time clock rounds
to the nearest quarter of an hour so employees are not paid for time worked up to 7
minutes before their shifts start. Nor are employees paid for time worked up to 7 minutes
after their shifts end if, for example, they have to wait for a game to end or a replacement
worker to arrive. Empress stresses, however, that such a policy is expressly permitted by
the FLSA “provided that it is used in such a manner that will not result, over a period of
time, in failure to compensate the employees properly for all the time they have actually
worked.” 29 C.F.R. § 785.48.
Plaintiff argues that the rounding policy always works against the employees. That
is, “employees cannot clock in until seven minutes before their shift [so] the time clocks will
always round up to reflect the scheduled ‘Start Time.’” (Doc. 58-1, at 10) (emphasis in
original). Similarly, “because an employee must clock out within seven minutes after his
‘End Time’ Defendants will always round down to reflect that employee’s scheduled ‘End
Time.’” (Id.) (emphasis in original). Plaintiff claims that where, as here, all rounding works
in the employer’s favor, it violates the FLSA. (Id.). See Russell v. Illinois Bell Tel. Co., 721
F. Supp. 2d 804, 820 (N.D. Ill. 2010) (“If, as plaintiffs allege, Illinois Bell’s time rounding and
log out policies often caused plaintiffs to work unpaid overtime in increments of under eight
minutes, then these company-wide practices may have resulted in unpaid overtime work.”).
13
1.
Individualized Inquiries
Empress counters that nothing in the Timekeeping Policy prevents employees from
“stopping work and clocking out before the end of their scheduled shifts” to “make up for
any time rounded away on the front end.” (Doc. 63, at 5) (emphasis in original). To be
sure, Plaintiff’s own time card shows that on several dates in April 2010, she clocked out
three or four minutes early. (Doc. 30-2, Ex. B). That still leaves three or four additional
minutes while Plaintiff was on-the-clock without pay, but Empress contends that it is not
clear whether Plaintiff was actually working during that time. This is a problem with respect
to certification, Empress says, because it demonstrates that the Court would need to make
individualized inquiries as to whether each plaintiff was working during the extra minutes
before and after his or her scheduled shift. (Doc. 55, at 24).
In that regard, Empress urges the Court to consider so-called “gap period” cases,
which address situations where there is an “interval between an employee’s manual punch
in time and his scheduled start time [and] between an employee’s scheduled end time and
his manual punch out time.” Babineau v. Federal Express Corp., 576 F.3d 1183, 1186
(11th Cir. 2009). In Babineau, for example, there was employee testimony regarding “the
various non-work-related activities that took place during the gap periods and the various
personal reasons that employees listed for coming in early and staying late.” Id. at 1192.
The court affirmed the denial of class certification under Rule 23(b) because “individualized
proof would be required to determine whether employees were actually working during the
pre- and post-shift gap periods.” Id. at 1191. See also Cornn v. United Parcel Serv., Inc.,
No. C03-2001-TEH, 2005 WL 2072091, at *2 (N.D. Cal. Aug. 26, 2005) (denying
certification under Rule 23(b) where “individual questions predominate[d] over whether time
14
spent on [changing into uniforms, shining shoes and punching in] should be counted as
hours worked and, if so, how much time, if any, was spent on these activities and
improperly excluded.”).
Empress claims that as in Babineau, Dealers and Slot Reps give varying accounts
of pre- and post-shift activities performed while clocked in. By way of example, Empress
notes that Foster often punches in early before using the restroom. (Foster Decl. ¶ 6).
Empress also finds it significant that McMillin and Heredia like to clock in early to avoid
being late. Heredia does not indicate what she does after clocking in, but McMillin states
that she gets her Slot Rep key, wallet key and radio, which can take from one to four
minutes. (McMillin Decl. ¶¶ 7, 8; Heredia Decl. ¶ 8). Like McMillin, Slot Rep Cordelia
Saunders also gets her keys and radio after punching in, then obtains her wallet and goes
to a supervisor who “counts me into my wallet.” (Saunders Decl., Doc. 55-12 ¶ 8).
As a preliminary matter, the Court does not find Empress’s Rule 23 “gap period”
cases to be particularly instructive. Empress correctly notes that in Burns v. Village of
Wauconda, No. 99 C 0800, 1999 WL 529574 (N.D. Ill. July 15, 1999), the court expressed
skepticism as to whether “Congress intended to render Rule 23 wholly irrelevant to the
question of class certification under the FLSA.” Id. at *2. The court acknowledged that
“some courts” follow the two-step analysis discussed earlier, but also opined that “the
requirement of an FLSA class action that all putative class members be ‘similarly situated’
to the representatives is, on its face, entirely consistent with the requirements of
commonality and typicality under Rule 23(a)(2) and (3).” Id. Ultimately, however, the court
found it “unnecessary to decide here which of the[se] competing approaches should be
employed in determining FLSA class certification.” Id. at *3.
15
Since the decision in Burns, courts have consistently adopted and followed the twostep analysis in FLSA certification cases.
Moreover, the FLSA’s “similarly-situated
requirement has been interpreted as ‘considerably less stringent’ than that applied to class
actions certified under Rule 23.” Perez v. Radioshack Corp., 552 F. Supp. 2d 731, 744
(N.D. Ill. 2005). Empress argues that the Supreme Court’s recent decision in Wal-Mart
Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), should nonetheless “guide this Court’s
analysis” even though it involved a Rule 23 class. (Doc. 63, at 9). Specifically, Empress
claims that the following statement “should certainly apply in the FLSA context”:
What matters to class certification . . . is not the raising of common
‘questions’ – even in droves – but, rather the capacity of a classwide
proceeding to generate common answers apt to drive the resolution of the
litigation. Dissimilarities within the proposed class are what have the
potential to impede the generation of common answers.
Id. at 2551 (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84
N.Y.U.L.Rev. 97, 132 (2009)). As Empress sees it, there will be no common answer to any
questions in this case, making certification inappropriate.
Dukes is distinguishable from the situation presented here in several respects. Not
only did it involve a Rule 23(b)(2) class action, but the plaintiffs there sought injunctive relief
for intentional discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq. In addition, the policy at issue was notable for “allowing discretion by local
supervisors over employment matters.” Id. at 2554 (emphasis in original). The Supreme
Court explained that such a policy is “just the opposite of a uniform employment practice
that would provide the commonality needed for a class action; it is a policy against having
16
uniform employment practices.” Id. (emphasis in original). There is no similar policy of
discretion with respect to rounding hours in this case.6
Even assuming that the gap period cases applied here, it is not clear to the Court
how the Empress declarations demonstrate that there is wide disparity regarding whether
employees work immediately after clocking in and before clocking out (rather than attend
to personal matters). DeGuzman, for example, engages in essentially the same activities
as those identified by McMillin and Saunders, though he claims to perform some of that
work even before clocking in. Specifically, if DeGuzman was not replacing another worker
when he started his shift, he (1) got his machine key, radio and wallet key from the security
guard, (2) signed a document with his badge number, and (3) went to the wallet bank and
counted it with his supervisor, all before clocking in.7 (DeGuzman Decl. ¶¶ 14, 15). If
DeGuzman was replacing another worker when he started his shift, then he obtained a
machine key and radio from the security guard before clocking in. He then clocked in 7
minutes before his shift started, immediately walked out to the floor, got the wallet and
wallet key from the person he was replacing, and counted the wallet. (Id. ¶ 16). It took
6
Relying on Dukes, Empress also expresses concern that Plaintiff will attempt
to conduct discovery on a representative basis, which will not give the casino an
opportunity to explore defenses against each individual plaintiff. (Doc. 63, at 8, 9 n.7). The
Dukes Court declined to certify a Rule 23 class “on the premise that [the employer] will not
be entitled to litigate its statutory defenses to individual claims.” 131 S. Ct. at 2561.
Empress argues that this language demonstrates that the Court “rejected any approach
that would extrapolate the results of a series of mini-trials to the much larger group of class
members, which is precisely the approach that Plaintiff’s counsel advocates here.” (Doc.
63, at 9). It is premature to address this issue at such an early stage of the proceedings,
when the Court lacks all the necessary information.
7
DeGuzman says that after January 2011, Empress changed its policy to
require Slot Reps to count their wallets after they clock in. (DeGuzman Decl. ¶ 15).
17
DeGuzman about two minutes to count the wallet, and the person he was replacing could
not leave until he finished the count. (Id.).
Bender and Rapka both claim that before they clocked in, they reviewed the “road
map,” which is “a description of the games . . ., my crew for the night (e.g., four dealers),
the tables that I was assigned to work that shift, the dealers we would follow that night, and
the order of breaks.” (Bender Decl. ¶ 15; Rapka Decl. ¶ 16). After clocking in, Bender and
Rapka would go directly to the casino floor and notify the Casino Operations Manager that
they were ready to work. (Id. ¶ 16; Rapka Decl. ¶ 17). Plaintiff testified that she, too,
“proceed[ed] on to the floor” right after clocking in, and Sansone concurs. (Pl. Dep., at 70;
Sansone Decl. ¶ 29).
With respect to clocking out, DeGuzman states that if he was being replaced by
someone, “that person would come to the floor before his or her scheduled shift began to
get the wallet key from me and count the wallet with me watching.” (DeGuzman Decl. ¶
18). If DeGuzman was not being replaced, then his supervisor counted the wallet with him
watching. This usually occurred at the wallet bank unless it was busy, in which case the
supervisor would count the wallet on the floor. (Id. ¶ 19). In any event, after the wallet was
counted by either the replacement or the supervisor, DeGuzman would go to the security
desk to return his machine key and radio. He was not allowed to clock out until all of these
activities had taken place. (Id. ¶ 20).
Rapka claims that when his shift ended, he always shut down the table unless he
was an “early out.”8 To accomplish this, Rapka would take all the chips out of the chip rack
8
See infra pp. 20-21 for a discussion of “early out” breaks.
18
and count them, then notify the supervisor that he was ready to close. The supervisor
would come over to the table and “read the chips and the amount of chips into the rack.”
(Rapka Decl. ¶ 19). Rapka double-checked the supervisor’s count and then a second
supervisor would be called over to recount the chips. After filling out some paperwork,
Rapka would sort the cards on the table, then walk to clock out. (Id.).
Based on these declarations, the Court is not convinced that it would need to make
significant individualized inquiries to determine whether employees in fact “worked” during
the period when they were clocked in.9 At a minimum, any such individual determinations
are not sufficient to preclude certification at stage one of the analysis. Only one declarant
stated that he used the restroom after clocking in; all others appear to have immediately
commenced working activities. This suggests that the workday begins as soon as an
employee clocks in, and continues until he or she clocks out. To the extent employees did
not clock in exactly 7 minutes early or clock out exactly 7 minutes after their shifts ended
on each and every day, a review of the time cards should reveal how much overtime the
employee is entitled to each week. See Alvarez, 605 F.3d at 449 n.1.
On the facts presented, Plaintiff has shown that common issues predominate with
respect to Empress’s rounding policy.
9
Plaintiff argues that if Empress required employees to clock in 7 minutes
early, this is compensable time even if they did not work. (Doc. 88, at 1 n.2) (citing 29
C.F.R. § 790.6).
19
2.
Breaks
Empress argues that the rounding actually benefits Dealers, at least when they take
an “early out break.” Empress explains that Dealers work on a group of tables called a
“string,” and there is always one more Dealer assigned to a string than there are tables.
(Foster Decl. ¶¶ 8, 9; Costa Decl. ¶ 12). As a result, Dealers generally get a 20-minute
break after one hour of work, meaning they “could spend as much as two hours of the shift
on breaks – even more on a 10-hour shift.” (Doc. 55, at 4). These breaks are paid.
(Foster Decl. ¶ 12; Hejna Decl. ¶ 10).
According to Empress, when a Dealer’s final break of the day runs up against the
end of her scheduled shift, she can clock out and leave the premises. The Dealer’s
manager will note the early out break on a variance sheet, and the hours paid will round
up to the full shift. (Herron Decl. ¶ 8; Foster Decl. ¶ 9). By Empress’s calculation, from
January 1, 2008 to May 27, 2011, Hejna was paid for an extra 1,017 minutes (or 16.95
hours) of work over those that she was actually on the clock. (Doc. 63, Ex. 1(A)). Foster,
similarly, was paid for an extra 333 minutes (or 5.5 hours) of work over those that he was
on the clock from May 2010 until May 26, 2011. (Doc. 63, Ex. 1(b)).
Rapka and Bender insist that Dealers could not in fact leave just because they were
on “early out” break. Instead, Casino Operations Managers “would make them do work
including, but not limited to sorting cards, do a push (work for someone to give them a
break), and pick up chips at the roulette games (often called muck).” (Rapka Decl. ¶ 21;
Bender Decl. ¶ 21). Regardless, Plaintiff contends that whether such early out breaks can
serve to “offset” overtime payments is a merits issue not properly addressed at step one
of the certification analysis. The Court agrees. Empress has at best raised a question as
20
to whether early out breaks constitute “hours worked” that can “offset” overtime pay. See
29 C.F.R. § 778.320 (noting that parties may agree to provide compensation for hours
spent in certain types of activities that would not be regarded as working time under the
Act). It would be premature to address this issue now. See Alexander v. Caraustar Indus.,
Inc., No. 11 C 1007, 2011 WL 2550830, at *2 (N.D. lll. June 27, 2011) (court declined to
consider whether paid lunch periods constituted “hours worked” which could be used to
offset overtime, finding the issue “best left for later in the litigation.”). Notably, it appears
that Empress counts hours worked on “early out” breaks towards overtime calculations,
suggesting that the time is in fact “working” time. (Doc. 65-1, at 6).
Even if offset is appropriate, it should be easy to determine from Empress records
which employees took the early out breaks and adjust their recoveries accordingly. As the
Seventh Circuit explained in Alvarez v. City of Chicago,
If the [plaintiffs] in this litigation ultimately recover, their recovery will be
determined by the application of mathematical formulae common to all class
members, although the specific variables (number of hours worked, hourly
wage, etc.) will vary from individual to individual. However, the individualized
facts will likely come in the form of undisputed payroll and time records.
605 F.3d at 449 n.1. In addition, it does not appear that Slot Reps ever get early out
breaks that would offset overtime payments. Rather, they receive two paid 15-minute
breaks during an 8-hour shift, two paid 20-minute breaks during a 10-hour shift, and a 30minute unpaid lunch break. (Deering Decl. ¶ 17; Sikirdji Decl. ¶ 15; Taylor Decl. ¶ 11;
McMillin Decl. ¶ 19).
In sum, Plaintiff has demonstrated a factual nexus binding Dealers and Slot Reps
with respect to whether Empress’s time clock policy, together with the rounding policy,
21
violates the FLSA. Conditional certification is appropriate on this basis at step one of the
analysis.
2.
Pre-Shift Meetings
Plaintiff contends that the putative class of Dealers and Slot Reps is also bound by
the fact that twice a week, they must attend mandatory, pre-shift meetings. (Pl. Decl. ¶
26(b)). Slot Reps have briefings on Tuesdays and Fridays; Dealers have separate briefings
on Mondays and Thursdays, lasting between five and fifteen minutes. (DeGuzman Decl.
¶ 12; Rapka Decl. ¶ 14; Bender Decl. ¶ 13; Pl. Dep., at 38). Plaintiff, DeGuzman, Rapka
and Bender all state that Casino Operations Managers usually conducted the briefings,
though DeGuzman says that supervisors sometimes ran his briefings when the Managers
were unavailable. (Pl. Dep., at 38; DeGuzman Decl. ¶ 12; Rapka Decl. ¶ 14; Bender Decl.
¶ 13). During the briefings, Managers told Dealers and Slot Reps about promotions,
problems, policies that needed to be focused on that week, and other job-related
information. (DeGuzman Decl. ¶ 13; Rapka Decl. ¶ 15; Bender Decl. ¶ 14).
Plaintiff, DeGuzman, Rapka, Bender and Sansone all claim that they were required
to attend the briefings, which typically “started before I clocked in seven minutes before my
shift began and they often started fifteen minutes before my shift began.” (Pl. Dec. ¶ 26(b);
Pl. Dep., at 70; DeGuzman Decl. ¶ 12; Rapka Decl. ¶ 14; Bender Decl. ¶ 13; Sansone Decl.
¶ 26(b)). To ensure that they were on time for these briefings, Plaintiff and DeGuzman
arrived at the casino at least 15 minutes before their shifts began on briefing days, and
Rapka and Bender arrived at least a half hour before their shifts began on those days. (Id.
at 166-67; DeGuzman Decl. ¶ 12; Rapka Decl. ¶ 14; Bender Decl. ¶ 13). Plaintiff claims
22
that due to Empress’s clock-in and rounding policies, employees are not compensated for
any of their time spent in these pre-shift meetings.
Empress concedes that once or twice a week, some Casino Operations Managers
hold briefing sessions with employees just prior to a shift or as a shift is starting in order to
reinforce information contained in briefing bulletins posted by the time clock. These
briefings cover issues such as new promotions, policy reminders, best practices, and other
Human Resources matters. (Doc. 55, at 4-5; Costa Decl. ¶ 19; McMillin Decl. ¶ 11; Allison
Decl. ¶¶ 7-8; Sikirdji Decl. ¶ 10). Empress stresses, however, that there is wide variation
as to “whether [managers] conduct these briefings, where they occur, how frequently they
occur, which shifts they are able to brief and how long the briefings last.” (Id. at 5).
Casino Operations Manager Sikirdji, for example, used to brief Dealers for three or
four minutes on Mondays and Thursdays, but he has not done so since December 2010.
(Sikirdji Decl. ¶ 10). Casino Operations Manager Taylor briefs Dealers only once a month
for approximately three or four minutes. (Taylor Decl. ¶ 9). Casino Operations Manager
Costa tries to brief employees once or twice a week for one or two minutes, but he only
manages to do so “about 50% of the time.” (Costa Decl. ¶¶ 19, 20). Casino Operations
Manager Allison, in turn, does a two to three minute briefing by the time clock when a new
bulletin is posted. Prior to December 2010, he conducted this briefing regularly, but he is
no longer able to do it consistently. Allison estimates that he usually ends up speaking to
only about 15 or 20 percent of the shifts that he oversees. (Allison Decl. ¶¶ 7, 8). The
managers all agree that they do not deem the briefings to be mandatory. Moreover, Taylor
and Costa do not take attendance, and Hinckle notes that there are no repercussions for
23
missing a briefing.10 (Allison Decl. ¶¶ 8, 9; Costa Decl. ¶ 19; Hinckle Decl. ¶ 7; Sikirdji Decl.
¶ 10; Taylor Decl. ¶ 9).
Several Dealers submitted declarations confirming the variation in briefings. Heredia
says there are pre-shift briefings on Mondays and Thursdays lasting about two minutes.
For anyone who misses a pre-shift meeting, the information is available on the bulletin
board. (Heredia Decl. ¶ 9). Hejna attends briefings approximately once a week for about
five minutes. No one takes attendance and Hejna is “not aware of any consequences for
not attending”; she does, however, think it “looks bad not to show up, because then
everyone sees that you’re running late.” (Hejna Decl. ¶¶ 12, 13). Foster recalls attending
briefings about once a week when he worked the 8:30 p.m. to 6:30 a.m. shift. The
meetings lasted about two to three minutes, but no one took attendance. Foster claims that
everyone was punched in when the meetings started, and that “there was no penalty for
not attending.” (Foster Decl. ¶ 14). Finally, Herron reports that “there used to be briefings”
once a week at the start of a shift, lasting two or three minutes. He describes the meetings
as “informal,” and says that he “never heard of any repercussions for anyone missing a
briefing.” (Herron Decl. ¶¶ 10, 11).
Empress argues that all of this variability regarding pre-shift briefings demonstrates
that members of the putative collective are not similarly situated. As the casino sees it,
10
Empress does acknowledge that for a two-week period from May 31 to June
7, 2010, the Company tested out a mandatory, twice-weekly pre-shift meeting. Employees
who could not attend the 15-minute meeting at the beginning of their shifts were scheduled
to come in 15 minutes before their usual start time. Empress maintains that employees
were paid for this time. In any event, the casino discontinued the program after two weeks
because Casino Operations Managers could not regularly leave the floor to conduct 15minute meetings for so many shifts. (Allison Decl. ¶ 9; Sikirdji Decl. ¶ 11).
24
“significant individual considerations” predominate depending upon the assigned manager
and shift. (Doc. 55, at 29-30). Empress relies on cases outside this district in which courts
denied certification because the plaintiffs did not allege that all putative class members
were subject to “uncompensated, yet identical, and regularly performed tasks.” Thompson
v. Speedway SuperAmerica LLC, Civ. No. 08-1107(PJS/RLE), 2008 U.S. Dist. LEXIS
115050, at *28 (D. Minn. Aug. 21, 2008). In Thompson, the plaintiffs themselves conceded
that they only “sometimes” performed compensable tasks from home without payment, “but
on an irregular basis.” Id. In Lawrence v. City of Philadelphia, Pennsylvania, No. 03-CV4009, 2004 WL 945139 (E.D. Pa. Apr. 29, 2004), similarly, the prospective plaintiffs worked
in “different unit types, different platoons, different locations, and ha[d] different
supervisors,” and their “off-the-clock” claim did not involve “regularly scheduled time that
[wa]s worked by all members of the class.” Id. at *2. See also Diaz v. Electronics Boutique
of America, Inc., No. 04-CV-0840E(SR), 2005 WL 2654270, at *3 (W.D.N.Y. Oct. 17, 2005)
(plaintiffs were not similarly situated to each other where one’s claims focused on exempt
status and the other’s claims focused on whether he was denied overtime pay for certain
hours worked).
This case is distinguishable from Thompson and Lawrence in that Plaintiff and the
Opt-Ins allege that Dealers and Slot Reps participate in regular pre-shift meetings twice a
week. Empress disagrees, pointing to the contrary affidavits from Casino Operations
Managers and other Dealers and Slot Reps. At step one of the certification analysis,
however, “it is not proper for the Court to assess the credibility of statements made in
plaintiff[’s] declaration.” Alexander, 2011 WL 2550830, at *2. Notably, Empress concedes
that these briefings do occur in some form at least on occasion, and that due to the
25
rounding policy discussed above, meetings that take place within 7 minutes prior to the
employees’ shift start time are not compensated. On these facts, Plaintiff has made her
minimal showing that Dealers and Slot Reps are subject to a pre-shift meeting policy that
factually binds them.
In a footnote, Empress contends that “[a]ccording to some witnesses, the time at
issue [with respect to the pre-shift briefings] is de minimus [sic].” (Doc. 55, at 30 n.12).
Empress cites cases in which courts granted summary judgment in favor of the defendants
with respect to unpaid work activities lasting 10 minutes or less. See, e.g., Lindow v.
United States, 738 F.2d 1057, 1062 (9th Cir. 1984) (affirming judgment for defendant where
employees spent 7 to 8 minutes in unpaid pre-shift work, and noting that “[m]ost courts
have found daily periods of approximately 10 minutes de minimis even though otherwise
compensable.”); Farris v. County of Riverside, 667 F. Supp. 2d 1151, 1165 (C.D. Cal.
2009) (granting the defendant’s summary judgment motion where unpaid pre-shift donning
and doffing activities took no more than 9 minutes per day); Albrecht v. Wackenhut Corp.,
No. 07 C 6162, 2009 WL 3078880, at *9 (W.D.N.Y. Sept. 24, 2009) (summary judgment
granted where unpaid pre-shift activities took no more than 3 to 6 minutes per day);
Hesseltine v. Goodyear Tire & Rubber Co., 391 F. Supp. 2d 509, 520 (E.D. Tex. 2005)
(claims for unpaid activities taking “ten minutes or less are de minimis as a matter of law.”).
Plaintiff argues that the de minimis rule does not apply to discrete work activities but,
rather, to “the aggregate amount of time for which an employee seeks compensation.”
(Doc. 58-1, at 19 (quoting U.S. Department of Labor Wage and Hour Advisory
Memorandum No. 2006-2, at 3)). As a result, Plaintiff says, Empress’s attempt to invoke
the de minimis rule with respect to pre-shift meetings, without regard to the other
26
challenged activities at issue in the case, must fail. Plaintiff also relies on Kasten v. SaintGobain Performance Plastics Corp., 556 F. Supp. 2d 941 (W.D. Wis. 2008), for the
proposition that because “the de minimis exception was created within the context of 1940’s
technology,” “‘one could argue that all time can be recorded to the minute,’ which could
effectively eliminate the de minimis exception.” Id. at 954. Finally, Plaintiff objects that
asserting the de minimis doctrine in cases involving a rounding policy “would be in direct
conflict with 29 C.F.R. § 785.48 that directs the Court to consider . . . small increments [of
5, 6 or 7.5 minutes] of under compensation over a period of time to determine in the
aggregate whether the employees are being paid for all hours worked.” (Doc. 58-1, at 2021).
The Court need not resolve these arguments regarding the viability or applicability
of the de minimis doctrine. For purposes of step one of the conditional certification
analysis, it suffices that the Court is not persuaded that the de minimis doctrine defeats
Plaintiff’s showing of a factual nexus between herself and members of the putative
collective.
3.
Training Courses
Plaintiff finally claims that in addition to attending mandatory briefings, Dealers are
bound by a requirement that they participate in unpaid training classes. (Pl. Decl. ¶ 38).
Plaintiff contends that these classes count as “working time” because attendance is not
voluntary and the training is directly related to the employees’ jobs. (Doc. 88, at 1-2) (citing
29 C.F.R. § 785.27). There is no dispute that Empress conducts a “dealer school” that
offers games training to Dealers free of charge, outside their work hours and without
compensation. (Id. ¶¶ 39-41; Deering Decl. ¶¶ 17; Foster Decl. ¶ 16; Herron Decl. ¶ 13;
27
Hinckle Decl. ¶ 10). Empress insists, however, that Dealers are not required to take
training classes, and they are therefore voluntary.11
Plaintiff counters that the training is not voluntary, and points to a recent job posting
for a Dealer position, which stated that applicants must be “willing to learn all games offered
in the casino.” (Doc. 30-2, Ex. 2). Further, she argues that Empress makes it clear to
employees that “failure to participate in training courses could adversely impact . . .
employment.” (Pl. Decl. ¶ 44). Bender, for example, believes that his managers punished
him for quitting a roulette training course by assigning him to a single BlackJack table. This
resulted in him not being part of the Dealer “road map” and being forced to always work the
same table. (Bender Decl. ¶ 24). Bender also maintains that Johnson, Sikirdji and Costa
told him on multiple occasions that he needed to learn more games. On at least one
occasion, moreover, either Johnson or Sikirdji said that Bender “needed to ‘better myself’
by learning more games.” (Id. ¶ 25).
Rapka did not learn any new games during his last three years of employment, but
he, Bender and Plaintiff all received comments about their experience level in performance
reviews.
In Bender’s 2008 review, Empress management gave him a “3” (Meets
Expectations) for “Passion for Involvement,” and stated that “Bruce could improve this
11
Between March and June 2009, Empress was closed for reconstruction due
to a fire on the premises. (Deering Decl. ¶ 17). During that time period, Empress paid
Dealers and Slot Reps their full regular rate of pay plus half of their “toke” or tip rate, even
though they were not working in the casino. (Id.; Taylor Decl. ¶ 13). As a result, Empress
required Dealers who did not know all of the games offered in the casino to take a class
and learn a new game. Empress explains that “attending classes was a specific job duty
for which Dealers were paid during that three-month period.” (Doc. 55, at 7). The Court
understands that Plaintiff is not seeking to recover for training courses completed during
the reconstruction period. (Pl. Dep., at 56-57).
28
score by learning another game.” (Doc. 83, Ex. C, at 26). Bender’s 2009 review indicated
that he “should strive to master more aspects of [my] position, such as learning Craps or
Roulette, to give [me] a more rounded dealing experience.” (Bender Decl. ¶ 26). Bender’s
2010 review similarly stated that he “should strive to learn more games so [that I] can have
the opportunity to work with more of our guests.” (Id.). Rapka’s 2009 review commented
that “[b]y learning additional games, Billy will be able to expand his knowledge and prove
to be a greater asset to the department as well as the company.” (Rapka Decl. ¶ 24).
Plaintiff, like Bender, received a “3” in “Passion for Involvement” in her 2008 performance
review. The reviewer stated that “by learning live poker or craps, Rosa will be able to
expand her job knowledge.” (Doc. 83, Ex. B, at D00198). After Plaintiff learned craps in
2010, her annual rating that year went up to “4” (Exceeds Expectations) for “Passion for
Involvement.” (Id., Ex. A, at D00179).
Empress contends that regardless of these reviews, the casino has never terminated
or laid-off a Dealer due to lack of games knowledge. Nor do managers tell or suggest to
Dealers that their jobs will be adversely affected if they do not learn new games. (Deering
Decl. ¶ 20; Hejna Decl. ¶ 16; Herron Decl. ¶ 15; Foster Decl. ¶ 15; Hinckle Decl. ¶ 11). The
mere fact that various supervisors and managers encouraged employees to learn new
games, Empress argues, is not enough to demonstrate that the training was mandatory.
(Doc. 87, at 2). Plaintiff notes that she does not have to show that the training is mandatory
in order to demonstrate that it is “not voluntary.” Rather, the regulations explain that
training is not voluntary if an employee is “given to understand or led to believe that his
present working conditions or the continuance of his employment would be adversely
affected by nonattendance.” 29 C.F.R. § 785.28. Plaintiff and the Opt-Ins claim that they
29
have presented evidence that Empress led Dealers to believe that they needed to learn
more games in order to be “better” and “more valuable” employees.
Empress disagrees, noting that Plaintiff, Rapka and Bender “were all long-tenured
Dealers at Empress and took years to learn new games.” (Doc. 87, at 3) (emphasis in
original). Plaintiff, for example, expressed a goal to learn craps in 1994, 1995 and 1996,
but she did not actually take the craps class until 2009. (Deering Decl. 2 ¶¶ 5-7; Doc. 87-1,
Exs. A-C; Pl. Dep., at 56). Rapka, similarly, stated in 1999, 2002, 2007 and 2008 that it
was his goal to learn craps, yet he still had not learned the game by the time of his
termination in 2011. (Id. ¶¶ 11, 14, 15). Plaintiff suggests that there may not have been
any craps classes available that accommodated her work schedule. (Pl. Dep., at 184).
Perhaps, but it is somewhat difficult to believe that Plaintiff truly thought that her job would
be adversely affected by failing to take training classes when she appears to have suffered
no adverse consequences in that regard for more than 15 years as an Empress employee.
The same is true of Rapka.
Regardless, for purposes of a step one analysis, the Court generally refrains from
considering the merits of the case or witness credibility.
See Alexander, 2011 WL
2550830, at *2 (at step one of the certification analysis, “it is not proper for the Court to
assess the credibility of statements made in plaintiff[’s] declaration.”); Marshall, 2010 WL
2404340, at *3; Blakes, 2011 WL 2446598, at *6.
At this very early stage of the
proceedings, Plaintiff has made at least a modest factual showing that Dealers must
engage in job-related training. The Dealer job description requires a willingness to learn
new games, Bender says he was punished for dropping a roulette class, and Plaintiff and
30
Bender both insist that Empress managers told them they would be more valuable
employees if they learned more games. (Pl. Dep., at 196; Bender Decl. ¶ 25).
Empress argues that even if the training is not voluntary, it also is not job related
and, thus, is not compensable work as defined under the regulations. (Doc. 87, at 4).
Training is “directly related” to an employee’s job “if it is designed to make the employee
handle his job more effectively as distinguished from training him for another job, or to a
new or additional skill.” 29 C.F.R. § 785.29. Empress contends that gaming classes teach
Dealers a new skill. (Doc. 87, at 4). As Plaintiff notes, however, by learning new games,
Dealers help “minimize labor costs while maximizing the number of table games available.”
(Doc. 88, at 4). A Dealer who learns more games is arguably able to handle his job more
effectively because his knowledge of multiple games means that he can be assigned to
more “strings.” Once again, for purposes of step one of the certification analysis, Plaintiff
has made a sufficient showing that Dealers are factually bound by the requirement that
they take unpaid, job-related training classes.
D.
Notice
The Court finally turns to Plaintiff’s proposed Notice and Consent forms. In FLSA
cases, “the court has ‘a managerial responsibility to oversee the joinder of additional parties
to assure that the task is accomplished in an efficient and proper way.’” Howard v.
Securitas Security Servs., USA Inc., 630 F. Supp. 2d 905, 907 (N.D. Ill. 2009) (quoting
Hoffmann-La Roche Inc., 493 U.S. at 170-71). In order to ensure that notice is “timely,
accurate, and informative,” a court should “monitor[] preparation and distribution of the
notice as early in the case as is practicable.” Id. (quoting Hoffmann-La Roche, 493 U.S.
at 171). “Court-approved notice ensures that putative class members receive ‘accurate
31
and timely notice concerning the pendency of the collective action, so that they can make
informed decisions about whether to participate.’” Id. (quoting Hoffmann-La Roche, 493
U.S. at 170). Such notice also limits “opportunities for abuse” in the class action process,
including misleading communications. Hoffmann-La Roche, 493 U.S. at 171.
To effectuate notice in this case, Plaintiff seeks putative plaintiffs’ “names,
addresses, e-mail addresses, dates of employment, location of employment, [and] social
security and telephone numbers in an excel spreadsheet format.” (Doc. 30-1, at 20 and
Ex. 3). Empress objects to the proposed notice on several grounds, and opposes the
requested discovery. The Court discusses each issue in turn.
1.
Class Definition
The parties agree that the FLSA has a three-year statute of limitations for willful
violations. 29 U.S.C. § 255. They disagree, however, as to how to calculate that threeyear period for purposes of the notice. Plaintiff’s proposed Notice defines the collective to
include all current and former Dealers and Slot Reps who worked at Empress “during the
period beginning three years prior to the filing of the original complaint (i.e., January 3,
2008) through the present.” (Id. at 18). Empress argues that the three-year period should
be calculated instead from the date of the Notice. (Doc. 55, at 31). In response, Plaintiff
claims that Empress agreed on June 2, 2011 to toll the statute of limitations pending
resolution of a motion to dismiss, and suggests that this date represents a fair compromise.
(Doc. 58-1, at 21). Empress disputes this, and Plaintiff provides no documentary support
for the alleged June 2, 2011 agreement.
The Court finds that the tolling of the limitations period lasted at most one week.
The tolling issue was first discussed during a status hearing before this Court on May 13,
32
2011. Defendants’ counsel indicated that Empress would agree to a stay as to Dealers and
Slot Reps who worked at Empress if that meant the casino would not have to respond to
Plaintiff’s certification motion prior to a ruling on the pending motion to dismiss. The parties
did not conclusively resolve the issue at that time, but shortly thereafter, on May 19, 2011,
Defendants’ counsel sent the Court a letter (copied to opposing counsel) confirming that
Empress agreed to toll the statute of limitations from May 13, 2011 until the Court ruled on
the motion to dismiss.
As it turned out, the Court ruled on the motion to dismiss the following day on May
20, 2011. (Doc. 37). Under the circumstances, the three-year period will be calculated
from the date of the Notice unless Plaintiff has a feasible proposal for how to incorporate
the one-week stay.
2.
Opt-In Period
Empress next objects to giving potential plaintiffs 120 days to decide whether they
wish to consent to be in the case. In Empress’s view, a 45-day opt-in period is reasonable
and sufficient. Garcia v. Salamanca Group, Ltd., No. 07 C 4665, 2008 WL 818532, at *5
(N.D. Ill. Mar. 24, 2008) (adopting 45-day opt-in period); Mielke v. Laidlaw Transit, Inc., No.
00 C 0669, 2003 WL 134996, at *5 (N.D. Ill. Jan. 17, 2003) (same). Plaintiff disagrees, and
proposes a 90-day opt-in period by way of compromise. (Doc. 58-1, at 22). She expresses
concern that “turn over at the casino may be higher than expected because of the stringent
rules that are used to justify terminations (e.g. failure to clock in three times subjects an
employee to termination).” (Id. at 21-22). She also notes that putative plaintiffs may have
left Empress when the casino temporarily shut down after a fire in the summer of 2009. (Id.
at 21).
33
Courts in this circuit have approved opt-in periods ranging from 45 to 120 days. See
Anyere, 2010 WL 1542180, at *4 (deferring to the plaintiffs’ request for a 120-day opt-in
period “based on their representation that this length of time is necessary because the
potential class is transitory and there is a high turnover rate, meaning that additional
investigation may be required in order to contact potential opt-in plaintiffs.”); Sharpe v.
APAC Customer Servs., Inc., No. 09-CV-329-BBC, 2010 WL 1292154, at *2 (W.D. Wis.
Mar. 29, 2010) (holding that 60-day opt-in period was sufficient); Kelly v. Bluegreen Corp.,
256 F.R.D. 626, 632 (W.D. Wis. 2009) (adopting plaintiff’s suggested 90-day opt-in period
without objection from the defendant); DeKeyser v. Thyssenkrupp Waupaca, Inc., No. 08
C 488, 2008 WL 5263750, at *6 (E.D. Wis. Dec. 18, 2008) (“There is no indication why 45
days, an opt-in period ordered by other courts in FLSA actions, would not be sufficient time
under these circumstances.”); Champneys v. Ferguson Enterprises, Inc., No. IP-02-535-CH/K, 2003 WL 1562219, at *7 (S.D. Ind. Mar. 11, 2003) (adopting 45-day opt-in period).
Given the relatively small number of potential class members who worked as
Dealers and Slot Reps at this single casino during a three-year period, the Court concludes
that a 60-day opt-in period is reasonable and will fairly balance the parties’ competing
concerns. Plaintiff is ordered to amend the Notice accordingly.
3.
Potential Costs Against Opt-In Plaintiffs
The parties disagree as to whether the Notice should inform potential plaintiffs that
they may have to pay Empress’s fees and costs in the event the lawsuit is unsuccessful.
Empress urges the Court to follow Garcia v. Elite Labor Serv., Ltd., No. 95 C 2341, 1996
WL 33500122 (N.D. Ill. July 11, 1996), in which the court modified the plaintiff’s proposed
notice to state: “[I]f you do not prevail on your claim, court costs and expenses may
34
possibly be assessed against you.” Id. at *4. See also Wright v. Lehigh Valley Hosp. and
Health Network, Civ. A. No. 10-431, 2011 WL 221770, at *7 (E.D. Pa. Jan. 20, 2011)
(“Courts . . . have required named plaintiffs to include information about this possibility [of
having to pay the prevailing defendant’s costs] in the notice sent to potential opt-in
plaintiffs.”)
Plaintiff insists that Anyere articulates a better-reasoned approach. The plaintiffs
in Anyere agreed to “inform any potential plaintiff who contacts plaintiffs’ counsel’s office
regarding the opt-in process” that they “may share in liability for payments of costs if [the
defendant] prevails.” Id. at *5. As a result, the court determined that the notice did not
need to contain this information. Id.
The Court agrees that the Notice should contain at least some language concerning
the cost issue, without giving it undue emphasis. Otherwise, potential plaintiffs will be
unaware of the possibility that costs must be paid absent a call to Plaintiff’s counsel.
Plaintiff shall draft proposed language for submission to the Court.
4.
Non-Retaliation Provision
In her proposed Notice, Plaintiff includes the following section regarding retaliation:
IV. YOU ARE PROTECTED FROM RETALIATION
In the event you wish to join, the FLSA provides that it is unlawful “to
discharge or in any other manner discriminate against any employee
because such employee has filed any complaint or instituted or caused to be
instituted any proceeding under or related to [the FLSA], or has testified or
is about to testify in any such proceeding, or has served or is about to serve
on an industry committee.” 29 U.S.C. § 215(a)(3). Penn National Gaming,
Inc. has taken the position that it will not retaliate against anyone for
participating in this case.
(Doc. 30-2, Ex. 3, at 3). Empress seeks to replace this section with the following language:
35
It is a violation of federal law for Defendants to discharge you in retaliation for
your participating in this lawsuit or take any other adverse employment action
against you because you have exercised your legal right to join this lawsuit.
(Doc. 55, at 33). In her reply brief, Plaintiff suggests that the language be modified to state
simply, “Penn National Gaming will not retaliate against anyone for participating in this
case.” (Doc. 58-1, at 22-23).
Neither party has cited any supporting case law, but in Craft v. Ray’s, LLC, No. 1:08CV-00627-RLY-JMS, 2008 WL 5458947 (S.D. Ind. Dec. 31, 2008), the court adopted nonretaliation language identical to that suggested by Empress. Id. at *2. The Court accepts
Empress’s proposal in that regard.
5.
Consent Forms Directed to the Clerk of Court
Empress claims that signed consent forms should be sent to the Clerk of Court
rather than to Plaintiff’s counsel. (Doc. 55, at 33). Empress directs the Court to Burns v.
Village of Wauconda, in which the court indicated that it would not approve a proposed
notice that instructed putative plaintiffs to send their consent forms to the plaintiffs’ counsel.
1999 WL 529574, at *3. The court stated that it is “more appropriate” to send those forms
to the court. Id. See also Mielke, 2003 WL 134996, at *3 (notice to the Clerk of the Court
“provided a neutral and fair method of returning the forms which would also provide for
assurance that the form was received by the correct deadline.”); Garcia, 1996 WL
33500122, at *5 (“[I]t is appropriate to have the consent forms sent to the Clerk of the
Court, rather than counsel for [the plaintiff]” in order to “avoid controversy over filing dates.”)
Plaintiff attempts to distinguish Garcia but does not address the other cases.
Rather, she notes that her attorneys contacted the Clerk’s office and learned that “with one
exception no one could recall having consents sent to them.” She also stresses that “the
36
clerk’s office stated it much prefers that Plaintiff’s counsel file the consents because
Plaintiff’s counsel can file them electronically.” (Doc. 58-1, at 23 n.16). In the interests of
compromise, Plaintiff proposes that she modify the Notice to state: “[Y]ou must return the
signed consent form to Plaintiffs’ counsel within [60] days or have your own attorney file it
with the Court within [60] days.” (Id. at 23).
In the Court’s view, the better practice here is to have putative class members send
their consent forms to Plaintiff’s counsel, and not to the Clerk’s office. To the extent that
Empress is willing to pay for a third-party administrator to collect and file the consents, the
Court will order this method.
6.
Discovery
Empress finally claims that “the Court should order Defendant to produce the names
and addresses of the putative class to a third party administrator, so that the third-party
administrator may issue the notice.” (Doc. 55, at 34). Empress explains that this will allow
prospective plaintiffs “to make an independent and objective decision as to whether they
want to participate in the lawsuit, without being pressured, harassed or repeatedly solicited
by Plaintiff’s counsel.” (Id.). Empress also raises concerns about class member privacy.
(Id.) (citing Wren v. Rgis Inventory Specialists, No. C-06-05778-JCS, 2007 WL 4532218,
at *9 (N.D. Cal. Dec. 19, 2007)) (where the plaintiffs offered no objection, the court ordered
that contact information be produced to a third-party administrator to protect employee
privacy).
Plaintiff objects that a third-party administrator would be unnecessary, costly and
inefficient, and notes that courts in this district have rejected the argument that the privacy
rights of potential class members outweigh a Plaintiff’s need for contact information. (Doc.
37
58-1, at 26). In Acevedo v. Ace Coffee Bar, Inc., 248 F.R.D. 550 (N.D. Ill. 2008), for
example, the court considered whether the plaintiffs had a compelling need for the names,
addresses and telephone numbers of putative class members and, if so, whether that need
outweighed the employees’ privacy rights. Id. at 554. The court held that “[d]ue process
requires an opportunity to discover this information at the present stage of litigation, and
such due process rights are more compelling than the privacy rights of potential plaintiffs’
addresses and phone numbers.” Id. Of course, if a third-party administrator were to be
designated to issue the notices, it is unclear why Plaintiff would need the requested
information.
Moreover, Plaintiff is seeking much more information than just names, addresses
and telephone numbers.
She also wants email addresses, dates and location of
employment and social security numbers. Plaintiff does not explain why she needs this
additional information. As a result, the Court finds that Empress must provide only names,
addresses, email addresses and telephone numbers at this time. Empress will inform the
Court by October 13, 2011 whether it wishes to pay for a third-party administrator to
process the information. If not, the information will be produced to Plaintiff, but the parties
may draft “[a] protective order limiting the use of this information to its intended purposes.”
Russell, 575 F. Supp. 2d at 939.
38
CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Judicially Supervised Notice
Under 29 U.S.C. § 216(b) [30] is granted as to Defendant Empress. Empress’s Motion to
Strike Statements in Rosa Nehmelman’s and Ross Sansone’s Declarations [47] is denied.
ENTER:
Dated: September 29, 2011
_______________________________
SHEILA FINNEGAN
United States Magistrate Judge
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