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Feehley v. Sabatino's, Inc.

United States District Court, D. Maryland

June 13, 2018

TODD FEEHLEY, THERESA LANDSMAN, ROBERT COWDEN, and LACHELLE BRADLEY
v.
SABATINO'S, INC. and VINCENT CULOTTA

          MEMORANDUM

          Catherine C. Blake United States District Judge

         Plaintiffs Todd Feehley ("Feehley"), Theresa Landsman ("Landsman"), Robert Cowden ("Cowden"), and Lachelle Bradley ("Bradley") (collectively, "plaintiffs"), on behalf of themselves and those similarly situated, bring this suit against their current or former employer, Sabatino's Inc., and its owner/operator, Vincent Culotta. Plaintiffs allege violations of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et. seq., and the Maryland Wage and Hour Law, Md. Ann. Code, Lab. & Empl. § 3-401 et. seq. Plaintiffs have filed a motion to conditionally certify a collective action pursuant to the FLSA. ECF No. 21. Specifically, plaintiffs seek to conditionally certify "all servers from the three year period preceding the filing of this lawsuit (September 7, 2017) through the date that this Motion is granted, who have worked for Defendants [at] "Sabatino's Restaurant" in the Little Italy neighborhood of Baltimore City, Maryland and received wages of less than S7.25/hour." ECF No. 21, p. 5. The parties have fully briefed the motion, and no oral argument is necessary. See Local R. 105.6. For the reasons set forth below, plaintiffs' motion will be granted.

         BACKGROUND

         Defendant Sabatino's, Inc. ("Sabatino's") is a Maryland corporation that owns and operates "Sabatino's Italian Restaurant" (the "Restaurant") in the Little Italy neighborhood of Baltimore. ECF No. 1, ¶ 6. Defendant Vincent Culotta ("Culotta") is the part-owner and operator of Sabatino's. Id. Plaintiffs were all previously employed as tipped employees at the Restaurant. Id. at ¶ 15; ECF No. 24, p. 1. Feehley and Cowden were bussers at the Restaurant, and Landsman and Bradley were servers at the Restaurant.[1] ECF No. 1, ¶ 15; ECF No. 24, p. 1. Relevant to this motion, plaintiffs, specifically Landsman and Bradley, allege they, and similarly situated servers, were not provided with tip credit information and had tips withheld for business losses by the defendants in violation of the FLSA.

         During the relevant period, the Restaurant paid its servers $3.13 per hour, [2] or $7.26 per overtime hour, and took a credit of $.50 per hour for meals, whether or not the server ate any food. ECF No. 21-1, ¶ 2. The rest of the servers' hourly minimum wage consisted of tips left voluntarily by customers. ECF No. 24-1, ¶ 5. Landsman and Bradley both testify in their affidavits that the Restaurant never informed them or other similarly situated servers that the Restaurant was taking a tip credit against the minimum wage based on the tips they received from customers. ECF No. 21-1, ¶ 5; ECF No. 21-3, ¶ 4.

         Plaintiffs also allege the Restaurant did not allow plaintiffs to retain all of the tips they received from customers because the Restaurant enforced a policy of requiring servers to pay for business losses, such as customer walkouts, server ordering errors, and billing errors, out of their tips. ECF No. 21-1, ¶ 4; 21-3, ¶ 3. Specifically, Landsman testified she was required to pay unpaid checks from customer walkouts out of her tips 2-3 times per year. ECF No. 21-l, ¶ 4. She also testified she and another waitress were once required to pay approximately $180.00 out of their tips while working a private party because two appetizer platters had been left off the bill by mistake. ECF No. 21-1, ¶ 4. Along with general allegations, Bradley similarly testified she was once required to pay over $50.00 out of her tips because of a customer walk-out in 2015. ECF No. 21-3, ¶ 3. They both testify that the Restaurant never informed them that tipped employees have the right to retain their tips except for a valid tip pooling arrangement. ECF No. 21-1, ¶ 6; 21-3, ¶ 5.

         Plaintiffs, on behalf of themselves and those similarly situated, filed their complaint in this court on September 7, 2017, alleging violations of the Fair Labor Standards Act of 1938 ("FLSA") and the Maryland Wage and Hour Law ("MWHL") against Sabatino's and Culotta. ECF No. 1. On April 3, 2018, Plaintiffs filed their motion for conditional certification and court-facilitated notice. ECF No. 21.

         STANDARD

         The FLSA allows plaintiffs to maintain a collective action against their employer for violations of the Act. 29 U.S.C. § 216(b); Quinteros v. Sparkle Cleaning, 532 F.Supp. 2d. 762, 771 (D. Md. 2008). Specifically, 29 U.S.C. § 216(b) states,

An action to recover the liability prescribed [by the FLSA] may be maintained against any employer... by any one or more employees for and on 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.

         Whether to certify a collective action is a decision within the discretion of the district court and should be made with consideration given to the remedial purposes of the FLSA. Quinteros, 532 F.Supp.2d at 771.

         District courts generally use a two-step process to decide whether to certify a collective action. Butler v. DirectSAT USA, LLC, 876 F.Supp.2d 560, 566 (D. Md. 2012) (citation omitted). At the first stage, the notice stage, "the court makes a threshold determination of whether the plaintiffs have demonstrated that potential class members are similarly situated, such that court-facilitated notice to putative class members would be appropriate." Id. (citation and internal quotation marks omitted). At the second stage, the decertification stage, the court "conducts a more stringent inquiry to determine whether the plaintiffs are in fact similarly situated as required by § 216(b)." Id. (citation and internal quotation marks omitted). The determination at the second stage is made at the conclusion of discovery and before trial. Id.

         ' Plaintiffs' current motion pertains only to the first stage of conditional certification. ECF No. 21. At this stage, "plaintiffs need only make a relatively modest factual showing" that the proposed class is similarly situated. Butler, 876 F.Supp.2d at 566 (citation and internal quotation marks omitted). In fact, courts generally only require "substantial allegations that the putative class members were together the victims of a single decision, policy, or plan." Randolph v. PowerComm Constr., Inc.,7 F.Supp.3d 561, 576 (D. Md. 2014) (citations and internal quotations marks omitted). More than "vague allegations with meager factual support" are required, but the allegations "need not enable the ...


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