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Tassy v. Lindsay Entertainment Enterprises Inc.

United States District Court, W.D. Kentucky, Louisville Division

March 9, 2017

GLORIA TASSY, individually and on behalf of all similarly situated, Plaintiff,
v.
LINDSAY ENTERTAINMENT ENTERPRISES, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          Thomas B. Russell, Senior Judge.

         Gloria Tassy, individually and on behalf of all other similarly-situated persons, filed this action against Lindsay Entertainment Enterprises, Inc. in an effort to recover unpaid minimum wages required by the Fair Labor Standards Act of 1938. To that end, she asks the Court to conditionally certify a class of current and former professional dancers, to approve notice to advise putative class members of their rights under the FLSA, and to furnish them an opportunity to opt-in to this action. Lindsay Entertainment Enterprises opposes conditional certification and certain aspects of Tassy's proposed notice and distribution protocol. For the following reasons, Gloria Tassy's Motion for Conditional Certification, [R. 5], is GRANTED IN PART and DENIED IN PART.

         I.

         A.

         Lindsay Entertainment Enterprises, Inc. operates The Godfather, a gentleman's club in Louisville, Kentucky. [R. 1 at 1, ¶¶ 1-2 (Complaint).] The Godfather employees a number people, including “wait staff, bartenders, security personnel and kitchen staff, ” to provide food, drink, and music to its patrons “in an adult setting.” [R. 9-2 at 1, ¶ 2 (Lindsay's Declaration); see also R. 1 at 3, ¶¶ 27-28.] The “main attraction” at The Godfather, though, remains its many “dancers, ” [R. 1 at 3, ¶ 29], among them Gloria “Mia” Tassy, [id. at 1, ¶¶ 1-3].

         Tassy worked as a dancer at The Godfather from May 2014 to January 2016. [Id.] During that time, she says, Lindsay Entertainment Enterprises never paid her a “direct wage.” [Id., ¶ 5.] Instead, she and other dancers worked for tips, [id., ¶ 6], less Lindsay Entertainment Enterprises' cut, [id. at 1, 4, ¶¶ 7, 35].

         While Tassy considered herself to be an employee at The Godfather, [see Id. at 2, ¶ 16], Lindsay Entertainment Enterprises classified her and other dancers as independent contractors, [see R. 9-2 at 1, ¶ 3]. According to Douglas “Scott” Lindsay, the President and Chief Executive Officer of Lindsay Entertainment Enterprises, [id., ¶ 1], dancers “lease” space at The Godfather “to offer personal dances, entertainment and personal conversations to individual customers, ” [id., ¶ 3]. In exchange for that access, dancers pay a fee to Lindsay Entertainment Enterprises. [Id.]

         B.

         Claiming an arrangement of that sort violates the Fair Labor Standards Act of 1938 (FLSA), ch. 676, § 6(a), 52 Stat. 1060, 1062-63 (codified as amended at 29 U.S.C. § 206(a)), Tassy filed this action against Lindsay Entertainment Enterprises seeking to recover unpaid minimum wages. She asks the Court to conditionally certify a class of current and former dancers who worked at The Godfather, to approve notice to advise putative class members of their rights under the FLSA, and to furnish them an opportunity to opt-in to this action pursuant to 29 U.S.C. § 216(b). [See R. 5 at 17-18 (Motion for Conditional Certification).] Lindsay Entertainment Enterprises opposes conditional certification along with certain portions of Tassy's proposed notice and distribution protocol.[1] [See R. 31 at 3-12 (Response).]

         II.

         The Fair Labor Standards Act of 1938 mandates that “employers pay a federally-established minimum wage, as well as overtime, to certain types of employees.” Boaz v. FedEx Customer Info. Servs., Inc., 725 F.3d 603, 605 (6th Cir. 2013) (citing 29 U.S.C. §§ 206(a), 207(a)). To enforce that mandate, the FLSA allows employees to sue on their own behalf and for all “similarly situated” persons too. 29 U.S.C. § 216(b). “Similarly situated” persons may “opt into” the suit, making it a “collective action.” Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006). The FLSA does not define the term “similarly situated.” O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 584 (6th Cir. 2009), abrogated on other grounds by Campbell-Ewald Co. v. Gomez, ___ U.S. ___, 136 S.Ct. 663 (2016). Courts in this Circuit, however, generally resort to a two-step process to determine whether employees are “similarly situated” for purposes of maintaining a collective action against their employer. See White v. Baptist Mem'l Health Care Corp., 699 F.3d 869, 877 (6th Cir. 2012).

         In the first stage, which takes place at the beginning of discovery, the Court must determine whether to conditionally certify the collective action and authorize the distribution of notice to putative class members. See Comer, 454 F.3d at 546-47; Swigart v. Fifth Third Bank, 276 F.R.D. 210, 213 (S.D. Ohio 2011). Conditional certification requires only a modest factual showing that the putative opt-plaintiffs are “similarly situated” to the named plaintiff. See White, 699 F.3d at 877. The second stage occurs “after ‘all of the opt-in forms have been received and discovery has been concluded.'” Comer, 454 F.3d at 546 (quoting Goldman v. RadioShack Corp., No. Civ.A. 2:03-CV-0032, 2003 WL 21250571, at *6 (E.D. Pa. Apr. 17, 2003)). In making its final-certification decision, the Court scrutinizes a number of factors, such as “the ‘factual and employment settings of the individual[] plaintiffs, the different defenses to which the plaintiffs may be subject on an individual basis, [and] the degree of fairness and procedural impact of certifying the action as a collective action.'” O'Brien, 575 F.3d at 584 (alterations in original) (quoting 7B Charles Alan Wright et al., Federal Practice and Procedure § 1807, at 497 n.65 (3d ed. 2005)). Regardless of the stage, the lead plaintiff bears the burden of “showing that the opt-in plaintiffs are similarly situated.” Id. (citing Wright et al., supra, § 1807, at 476 n.21).

         III.

         The instant action is at the first of those two stages. Tassy, on behalf of herself and other similar-situated persons, moves for conditional certification of the following class:

[All] current and former Entertainers/Exotic Dancers who: (1) work(ed) for Defendant from February 2013 to the present; (2) worked for tips only; and (3) by virtue of Defendant's Tips Only Pay Policy, were not paid the wages required by federal law.

         [R. 5 at 17-18.] In addition, she seeks judicial approval of attached notice and consent-to-join forms to apprise putative class members of their right to opt-in to this action. [Id. at 18; see also R. 5-1 at 1-4 (Proposed Notice); R. 5-3 at 1 (Consent-to-Join Form).] Lindsay Entertainment Enterprises opposes conditional certification along with certain portions of Tassy's proposed notice and distribution protocol. [R. 31 at 3-12.] Having thoroughly reviewed the record and the parties' submissions, the ...


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