United States District Court, D. Maryland
CLAUDIA HARBOURT, et al.
PPE CASINO RESORTS MARYLAND, LLC, d/b/a MARYLAND LIVE! CASINO
Catherine C. Blake United States District Judge
bring this putative class action against PPE Casino Resorts
Maryland, LLC (“PPE”), owner and operator of
Maryland Live! Casino. 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).
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.
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,
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). 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).
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.).
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).
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.
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).
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.
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).
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.
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); 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 ...