United States District Court, D. Maryland
TODD FEEHLEY, THERESA LANDSMAN, ROBERT COWDEN, and LACHELLE BRADLEY
SABATINO'S, INC. and VINCENT CULOTTA
Catherine C. Blake United States District Judge
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.
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. 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.
the relevant period, the Restaurant paid its servers $3.13
per hour,  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.
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.
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
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.
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.
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
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 ...