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Harbourt v. PPE Casino Resorts Maryland, LLC

United States District Court, D. Maryland

January 23, 2017



          Catherine C. Blake United States District Judge

         Plaintiffs bring this putative class action against PPE Casino Resorts Maryland, LLC (“PPE”), owner and operator of Maryland Live! Casino.[1] The plaintiffs allege that PPE failed to pay them for the vast majority of a training course they attended as Casino employees, in violation of the Fair Labor Standards Act (“FLSA”) and Maryland wage and hour laws. Pending before the court are the plaintiffs' motions for conditional certification of the FLSA claims and the court's assistance in identifying and notifying similarly situated employees, and for equitable tolling of the FLSA's statute of limitations. Also pending is the plaintiffs' motion for class certification of the state law claims pursuant to Fed.R.Civ.P. 23. The motions have been fully briefed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016).

         For the reasons that follow, the motions for equitable tolling and for conditional certification under the FLSA will be denied, but the motion for class certification pursuant to Fed.R.Civ.P. 23 will be granted.


         PPE owns and operates Maryland Live! (“the Casino”) in Hanover, Maryland. (Compl. ¶ 5, ECF No. 1). In response to a state referendum authorizing casinos to operate table games such as blackjack, poker, craps, and roulette beginning on April 11, 2013, PPE developed a training course to train more than 800 people to staff the 150 table games it planned to operate. (Id. ¶¶ 15-16). Advertised as a free twelve week dealer school to be held in conjunction with Anne Arundel County Community College, the course was designed to quickly equip prospective employees to run table games by spring of 2013 and was required for employment at the Casino. (Id. ¶¶ 16-17, 20).

         The plaintiffs were among the approximately 1, 000 individuals who applied for Casino positions. (Decl. of Claudia Harbourt ¶¶ 4-5, ECF No. 27-3 (hereinafter “Harbourt Decl.”); Decl. of Michael Lukoski ¶¶ 4-5, ECF No. 27-4 (hereinafter “Lukoski Decl.”); Decl. of Ursula Pocknett ¶¶ 4-5, ECF No. 27-5 (hereinafter “Pocknett Decl.”); Decl. of Philip Kroll ¶¶ 4-5, ECF No. 27-6 (hereinafter “Kroll Decl.”); Decl. of Melvin Lorden ¶¶ 4-5, ECF No. 27-7 (hereinafter “Lorden Decl.”); Decl. of Charles Parker ¶¶ 4-5, ECF No. 27-8 (hereinafter “Parker Decl.”); Decl. of Nathan Reid ¶¶ 4-5, ECF No. 27-9 (hereinafter “Reid Decl.”); Decl. of Harvey Robinson ¶¶ 4-5, ECF No. 27-10 (hereinafter “Robinson Decl.”). After an interview by Casino employees, the plaintiffs were asked if they would like to attend a course to become a dealer at the Casino. (Harbourt Decl. ¶ 5, 9; Lukoski Decl. ¶ 5, 9; Pocknett Decl. ¶ 5, 9; Kroll Decl. ¶ 8; Lorden Decl. ¶ 9; Parker Decl. ¶ 9; Reid Decl. ¶ 9; Robinson Decl. ¶ 6). Approximately 831 individuals were selected to attend the course, which ran from January 7, 2013, until April 1, 2013. (Compl. ¶¶ 21-22, 24).[2] The course, held at Marley Station Mall, (id. at 4, ¶ 18), consisted of four hours of daily instruction Monday through Friday, offered in four time slots: 8 a.m. to 12 p.m., 12 p.m. to 4 p.m., 4 p.m. to 8 p.m., and 8 p.m. to midnight, (id. ¶ 26).

         Instruction provided at the dealer school was specific to the manner in which the Casino's employees were to run table games in the “Maryland Live! way.” (Harbourt Decl. ¶ 16, 20; Lukoski Decl. ¶ 17-18; Pocknett Decl. ¶ 17-18; Kroll Decl. ¶ 17; Lorden Decl. ¶ 17; Parker Decl. ¶ 18; Reid Decl. ¶ 16; Robinson Decl. ¶ 13). Although the plaintiffs were advised the course was developed in conjunction with Anne Arundel Community College, the instructors and course materials were all provided by Maryland Live! (Harbourt Decl. ¶ 19; Lukoski Decl. ¶ 17; Pocknett Decl. ¶ 17; Kroll Decl. ¶ 16; Lorden Decl. ¶ 16; Parker Decl. ¶ 17; Reid Decl. ¶ 15; Robinson Decl. ¶ 12). During the course, the Casino required that attendees complete employment forms, including W-2 forms and a direct deposit authorization. (Lukoski Decl. ¶ 22; Pocknett Decl. ¶ 22; Kroll Decl. ¶ 21; Lorden Decl. ¶ 20; Parker Decl. ¶ 22; Reid Decl. ¶ 19). The paperwork was completed through a human resources department located on site at Marley Station. (Id.). Attendees were required to pay $24 for the Casino to obtain their driving records, provide their fingerprints and social security numbers, and authorize the Casino to perform criminal and financial background checks on them. (Id.).

         Ms. Harbourt attended the dealer school for approximately eight weeks, (Harbourt Decl. ¶ 22); Mr. Parker and Mr. Robinson attended for ten weeks, (Parker Decl. ¶ 20; Robinson Decl. ¶ 9); Ms. Pocknett attended for eleven weeks, (Pocknett Decl. ¶ 25); and Mr. Lukoski, Mr. Kroll, Mr. Lorden, and Mr. Reid completed all twelve weeks of the course (Lukoski Decl. ¶ 31; Kroll Decl. ¶ 30; Lorden Decl. ¶ 28; Reid Decl. ¶ 26). The plaintiffs who failed to complete the course were not paid at all for their attendance; those who completed the course received an hourly wage of $7.25 for the final two days of the school. (Lukoski Decl. ¶ 29; Kroll Decl. ¶ 29; Lorden Decl. ¶ 26; Reid Decl. ¶ 25).

         On October 14, 2014, the original three named plaintiffs filed this putative class action asserting violations of the FLSA, 29 U.S.C. §§ 201-209 (2012), the Maryland Wage and Hour Law, Md. Code, Lab. & Empl. §§ 3-401 to -431 (2015) (“MWHL”), and the Maryland Wage Payment and Collection Law, Md. Code, Lab. & Empl. §§ 3-501 to -509 (2015) (“MWPCL”). PPE moved to dismiss for failure to state a claim on November 11, 2014, and the motion was granted on April 21, 2015.

         The plaintiffs appealed, and on April 25, 2016, the Fourth Circuit issued a ruling reversing this court's dismissal and remanding the case for further proceedings. Harbourt v. PPE Casino Resorts, Maryland, LLC, 820 F.3d 655, 661 (4th Cir. 2016).

         The other seven plaintiffs filed an identical action on February 5, 2016, for the purpose of preserving their FLSA claims under the statute of limitations. (Philip Kroll, et al. v. PPE Casino Resorts Maryland, LLC, Civil Action NO. 1:16-cv-00339-CCB, Compl., ECF No. 1). This court granted a motion to consolidate on June 22, 2016. (Order Granting Mot. to Consolidate Cases, ECF No. 23). The plaintiffs filed the present motions on June 24, 2016, two weeks after the Fourth Circuit issued its mandate.


         I. Equitable Tolling

         The plaintiffs first petition the court to toll the statute of limitations under the FLSA beginning November 11, 2014, the date the defendant's motion to dismiss was filed. The FLSA has a two-tiered statute of limitations. 29 U.S.C. § 255(a). For ordinary violations there is a two-year statute of limitations. See 29 U.S.C. § 255(a); Desmond v. PNGI Charles Town Gaming, L.L.C., 630 F.3d 351, 357 (4th Cir. 2011). For “willful” violations there is a three-year statute of limitations. Desmond, 630 F.3d at 357. Unlike Rule 23 claims, which automatically toll upon filing of the class action, the limitations period for FLSA collective actions continues to run for each individual plaintiff until he or she files written consent to the suit. 29 U.S.C. § 256(b).

         Equitable tolling of the statute of limitations is available when “plaintiffs were prevented from asserting their claims by some kind of wrongful conduct on the part of the defendant” or “extraordinary circumstances beyond plaintiffs' control made it impossible to file the claims on time.” Cruz v. Maypa, 773 F.3d 138, 145 (4th Cir. 2014) (quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)). It is meant to be a “rare remedy available only where the plaintiff has ‘exercise[d] due diligence in preserving [his or her] legal rights.'” Cruz, 773 F.3d at 145-46 (quoting Chao v. Va. Dep't of Transp., 291 F.3d 276, 283 (4th Cir. 2002)). As a result, the “circumstances under which equitable tolling has been permitted are . . . quite narrow.” Chao, 291 F.3d at 283.

         Courts have equitably tolled the statute of limitations in FLSA actions in cases involving unusual delays in the court's consideration of a motion for conditional certification caused by the procedural posture of the case. See, e.g., Ruffin v. Entm't of the E. Panhandle, No. 3:11-CV-19, 2012 WL 28192, at *2 (N.D. W.Va. Jan. 5, 2012) (equitably tolling the FLSA statute of limitations where court delayed ruling on plaintiffs' collective action for five months pending resolution of an FLSA setoff issue)[3]; Stickle v. SCIWestern Mkt. Support Ctr., L.P., 2009 WL 4446539, *21-*22 (D. Ariz. Sept. 30, 2008) (equitably tolling the FLSA statute of limitations where court stayed ruling on plaintiffs' collective action pending determination of defendant's motion to dismiss). Courts also have granted equitable tolling in cases where potential opt-in plaintiffs lack notice of the lawsuit due to circumstances beyond their control. See Stransky v. HealthONE of Denver, Inc., 868 F.Supp.2d 1178, 1181-82 (D. Colo. 2012) (equitably tolling the FLSA statute of limitations until 90 days after opt-in ...

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