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Pecora v. The Big M Casino Inc.

United States District Court, D. South Carolina, Florence Division

January 23, 2019

MICHAEL PECORA, on behalf of himself and all other similarly situated, Plaintiffs,
THE BIG M CASINO, INC. and JOHN DOE 1-10, individually, Defendant.


          R. Bryan Harwell United States District Judge.

         This action arises from Plaintiff Michael Pecora's (“Pecora”) allegations that Defendants have violated 29 U.S.C. § 21');">16(b) (the “Fair Labor Standards Act” or “FLSA”) and/or S.C. Code Ann. § 41');">1-1');">10-1');">10 et seq. (the “South Carolina Payment of Wage Act” or “SCPWA”). On May 24, 20');">20');">20');">201');">18, Pecora brought suit against his former employer, Defendant Big M Casino, Inc. (“Big M” or “Defendant”) for unpaid wages. Pecora has sued both in his individual capacity and on behalf of all other similarly situated putative class members. Presently before the Court is Plaintiffs' Motion for Conditional Class Certification under the FLSA and to Authorize Notice to Putative Class Members. [ECF #1');">18]. On September 1');">11');">1, 20');">20');">20');">201');">18, Big M filed a response to this motion. [ECF #20');">20');">20');">20]. Plaintiffs filed a reply on September 21');">1, 20');">20');">20');">201');">18. [ECF #24]. This matter is now before the Court for disposition.[1');">1" name="FN1');">1" id="FN1');">1">1');">1]

         Factual and Procedural Background

         According to the allegations within the complaint, Pecora was employed by Big M, a casino boat cruise company, as a “dealer” and “shift supervisor” for over ten years. [ECF #1');">1, ¶¶ 1');">19-20');">20');">20');">20, 26]. Pecora alleges that Defendants paid him and others less than the statutory minimum wage by taking the “tip credit” under the FLSA. [ECF #1');">1, ¶ 22]. Pecora further alleges that Big M had a policy requiring dealers, including Pecora, to participate in a mandatory tip pool, and Big M would then redistribute those tips to shift supervisors. [ECF #1');">1, ¶¶ 23-24]. Pecora further alleges that he, as well as other employees, were not paid for time spent working prior to and after the casino boat's departure and return to the dock. [ECF #1');">1, ¶¶ 27-30].

         Pecora filed this lawsuit on behalf of himself and as a collective action under the FLSA and as a Rule 23 class action to recover damages resulting from the failure to pay the proper minimum wage and failure to pay overtime wages. Pecora filed a motion to certify the class under the FLSA only. Pecora asserted in his motion that he and one other individual who worked for Big M have joined the lawsuit. Since the filing of the initial motion, eight more former employees have filed a notice evidencing their consent to become a party plaintiff to this lawsuit. According to Pecora, Big M implemented a policy wherein it would pay employees acting as “floor supervisors” less than minimum wage by taking the Tip Credit provided for in the FLSA. [ECF #1');">18-1');">1, p. 1');">1]. Employees acting in the position of “floor supervisor” for the majority of a shift also acted in the dual position of “dealer” for a small portion of a shift. [ECF #1');">18-1');">1, p. 2]. Pecora argues that while acting as a rotating supervisor, the “floor supervisors” were not employees who “customarily and regularly” received tips as defined by the FLSA. Pecora further argues that Defendants implemented a mandatory tip pool into which dealers were requires to contribute tips. [ECF #1');">18-1');">1, p. 2]. Pecora argues that because floor supervisors received funds from this tip pool but were not regularly and customarily tipped employees, the policy invalidated the use of the tip credit. [ECF #1');">18-1');">1, p. 2]. Defendants refute these “facts” and, relying upon the affidavit of Big M's general manager, Mary Slabinski, state that Pecora worked as either a dealer or a supervisor and that there is no such position as “floor supervisor.” [ECF #20');">20');">20');">20-1');">1, Aff. of Mary Slabinski]. She provides payroll records, purportedly showing that Pecora was paid one rate as a supervisor, and another rate, a tip credit wage rate, as a dealer. [ECF #20');">20');">20');">20-1');">1, Aff. of Mary Slabinski].

         The Plaintiffs now seeks to conditionally certify a class in this matter and have filed a motion to certify this lawsuit as a collective action. Plaintiffs wish to define the class as follows:

all individuals who were employed by Defendants as Dealers or Floor Supervisors at any time within the three years prior to joining this lawsuit, who were nonexempt employees paid a direct, or hourly, rate less than the minimum wage of Seven and 25/1');">100 dollars ($7.25) per hour and participated in a mandatory tip pool created by the Big M (“Tip Pool.”).

         Plaintiffs further seek to provide and effectuate notice via several methods of communication, and therefore requests this Court enter an order requiring Big M to provide specific information, include the full names and addresses of employees, dates of employment, mailing addresses, email addresses, and telephone numbers. Further, Plaintiffs request this Court authorize the mailing of a specific Notice and Consent via U.S. mail, email, and text message. The initial Notice and Consent to be mailed was attached to the motion. [ECF #1');">18-6, Exhibit 4]. Plaintiffs also attached proposed notices to be sent via e-mail and via text message. [ECF #1');">18-7, Exhibit 5; Exhibit #1');">18-8, Exhibit 6]. Big M disagrees that conditional class certification is proper, arguing that: (1');">1) Pecora has failed to establish a class of “similarly situated” individuals; (2) Pecora has only provided the consent of one other individual interested in joining the lawsuit; and (3) that the requested Notice is deficient. [ECF #21');">1]. After the filing of Big M's response, eight more individuals filed a Notice of Joinder in this lawsuit. Accordingly, in addition to Pecora, there are now nine opt-in plaintiffs, bringing the total number of plaintiffs, including those seeking to opt-in, at ten.


         I. Standard for Conditional Certification

         Plaintiffs filed this motion pursuant to Section 21');">16(b) of the FLSA. This Section provides:

An action . . . may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 21');">16(b). Several district courts employ a two-step process in analyzing the certification of a collective action under the FLSA. At the first step, the court generally considers “whether other similarly situated employees should be notified.” Curtis v. Time Warner Enter.-Advance Newhouse Partnership, No. 3:1');">12-CV-2370-JFA, 20');">20');">20');">201');">13 WL 1');">1874848, at *2 (D.S.C. May 3, 20');">20');">20');">201');">13). The second step is triggered by an employer's motion for decertification and typically occurs after substantial discovery has taken place. Id.

         Under step one, Court's often require a plaintiff show a “reasonable basis” for his or her claim that there are other similarly situated employees. Id. (citing Morgan v. Family Dollar Stores, Inc., 1');">1 F.3d 1');">1233');">551');">1 F.3d 1');">1233, 1');">1258-62 (1');">11');">1th Cir. 20');">20');">20');">2008). Alternatively, courts have required plaintiffs to “make a ‘modest factual showing' that they and potential opt-in plaintiffs ‘together were victims of a common policy or plan that violated the law.'” Id. (citing Myers v. Hertz Corp., 624 F.3d 537, 554-55 (2d Cir. 20');">20');">20');">201');">10)). Under this step, the plaintiff's burden has been described as “fairly lenient” because the court is trying to determine whether “similarly situated” plaintiffs exist. Id. Still, the plaintiff bears the burden of demonstrating that notice is appropriate. MacGregor v. Farmers Ins. Exchange, No. 2:1');">10-cv-03088, 20');">20');">20');">201');">11');">1 WL 2981');">1466, at *2 (citing D'Anna v. M/A-COM, Inc., 903 F.Supp. 889, 894 (D. Md. 1');">1995)). The Court's discretion to facilitate notice in these cases is not without bounds. MacGregor, 20');">20');">20');">201');">11');">1 WL 2981');">1466, at *2. Courts should not exercise this discretion unless the plaintiff has shown that the facts and circumstances of the case present a class of “similarly situated” aggrieved employees. Id. (citing Purdham v. Fairfax Cnty. Pub. Schs., 629 F.Supp.2d 544, 547-48 (E.D. Va. 20');">20');">20');">2009). If a court were to grant a motion for conditional certification, the defendant may file a motion for decertification, at which time a more stringent standard under the second step must be met. Id. at *3. The second step usually occurs near the end of discovery, and the courts have considered a number of factors, including (1');">1) disparate factual and employment settings of individual plaintiffs; (2) the various defenses available to defendants that appear to be individual to each plaintiff; and (3) fairness and procedural considerations. Id.

         II. Motion Requesting Conditional Certification

         Big M first argues that Pecora has failed to make a showing that there is a class of similarly situated employees or an identifiable factual nexus with putative class members. Because a plaintiff must show some identifiable factual nexus with class members, Big M argues that Pecora must demonstrate that there are a sufficient number of putative class members who wish to join this action. At the time Big M filed its response, only one other individual, Marc Rugotske, filed a Consent to Join Lawsuit. [ECF #1');">12]. Accordingly, Big M argued that Pecora cannot make the proper showing because he has not shown that there are other individuals interested in joining this action. See generally Pelczynski v. Orange Lake Country Club, Inc., 284 F.R.D. 364, 369 (D.S.C. July 1');">12, 20');">20');">20');">201');">12) (noting that the benefit to a collective action is questionable when there are a limited number of class members).

         In response, Pecora points out that the majority of courts in this circuit have declined to require evidence of other potential plaintiffs' desire to opt-in to a collective action. See Gordon v. TBC Retail Group, Inc., 1');">134 F.Supp.3d 1');">1027, 1');">1039-40 (D.S.C. 20');">20');">20');">201');">15); see generally McCoy v. RP, Inc., 2:1');">14-CV-31');">171');">1-PMD, 20');">20');">20');">201');">15 WL 61');">157306 (Oct. 1');">19, 20');">20');">20');">201');">15) (explaining that the Fourth Circuit has not ruled on this specific issue, and that this requirement seems at odds with the opt-in procedures applied under the FLSA). Further, since the filing of the response to this motion, eight other individuals have filed a Consent to Joint Lawsuit. [ECF #25; #26; #27; #28; #29; #31');">1]. Therefore, whether or not such a showing is required, the fact that there are now ten opt-in plaintiffs evidences the fact that there are similarly-situated employees seeking to join this lawsuit.

         Big M further argues that Pecora has not established that he represents a class of similarly-situated employees. Big M takes specific issue with certifying a class of employees who worked as dealers or “floor supervisors” because Big M argues that the position of “floor supervisor” does not exist, that employees acting as supervisors did not participate in the tip pool, and that instead, these employees were paid $25 per hour. In response, Pecora states that Big M essentially argues he is not a proper representative because the facts, as Pecora testifies to them in his affidavit, are in dispute by Big M. Pecora argues that at the conditional certification stage, a court may not make credibility determinations, and that this Court should find his affidavit sufficient to support his factual allegations. See McCoy, 20');">20');">20');">201');">15 WL 61');">157306, at *3-*4 (considering the evidence presented in an affidavit provided by the plaintiff an finding that it provided sufficient factual evidence to support a finding that the proposed class was similarly situated).

         As previously stated, while the burden upon a plaintiff is “fairly lenient, ” Pecora must show an identifiable factual nexus which binds him and the other potential opt-in members. Dimery v. Convergys Corp., 1');">17-cv-00701');">1-RBH, 20');">20');">20');">201');">18 WL 1');">1471');">1892, at *8 (D.S.C. Mar. 1');">16, 20');">20');">20');">201');">18). Here, Pecora argues that he has testified that when he was assigned the duties of a floor supervisor, as well as when other employees were assigned these same duties, they were paid less than the statutory minimum wage. [ECF #1');">18-4]. This is the group of “similarly situated” employees he argues were all subject to the same pay policy that he contends is in violation of the FLSA. The main disagreement between Big M and Pecora appears to be over whether there was an independent position of “floor supervisor” and the circumstances surrounding whether an employee participated in the “mandatory” tip pool. While Big M argues that Plaintiffs must do more than put forth unsupported allegations, Pecora has filed his own declaration attesting to the facts supporting the conditional certification motion. [ECF #1');">18-4, Aff. of Michael Pecora]. At this stage of the litigation, credibility determinations are usually inappropriate. See Hart v. Barbeque Integrated, Inc., 299 F.Supp.3d 762, 771');">1 (D.S.C. 20');">20');">20');">201');">17) (noting that while the defendant produced a number of declarations calling into question the plaintiff's claims, the plaintiff established a reasonable basis for her claim that other similarly situated individuals existed); see also DirectSAT USA, LLC, 876 F.Supp.2d 560, 572 (D. Md. 20');">20');">20');">201');">12); Further, Plaintiffs assert in reply that they agree to withdraw the portion of the motion for conditional certification seeking to include “floor supervisors” in the putative class. Big M also provides in its own response that it was only when Pecora worked as a dealer “that he was paid less than minimum wage and participated in the dealer's tip pool.” [ECF #20');">20');">20');">20, p. 1');">10]. In reviewing the proposed class definition, removing the term “floor supervisors” from the class proffered by Plaintiffs would obviate Big M's concerns as to the confusion about job position terminology. Therefore, under the standard set forth above to satisfy step one of the conditional certification process, this Court finds that Plaintiffs have met that standard for conditional class certification.[2] Taking into account the arguments made by both parties, the class is hereby defined as follows:

any individual employed at Big M at any time since [DATE 3 YRS PRIOR TO MAILING] who at any time was paid a direct, or hourly, rate less than the statutory minimum wage of Seven and 25/1');">100 dollars ($7.25) per hour and held the position of dealer.[3]

         Next, Plaintiffs request this Court allow notice to be sent to potential class individuals in several different mediums. Big M raises several objections to the contents and dissemination of the notice to be sent to ...

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