United States District Court, D. Maryland
Claudia Harbourt, et al.
PPE Casino Resorts Maryland, LLC,
Catherine C. Blake, United States District Judge
years ago PPE Casino Resorts Maryland, LLC, otherwise known
as Maryland Live! Casino, ran a program to train table game
dealers: The plaintiffs, Claudia Harbourt, Michael Lukoski,
and Ursula Pocknett,  participated in that program and have
since sued Maryland Live! Casino, under, among other laws,
the Fair Labor Standards Act. They claim the program
constituted "work" under the Act and as a result
they should have been paid for their time. The Casino now
moves for summary judgment. (ECF No. 58). For the reasons
stated below, the Casino's motion will be granted.
November 2012, Maryland voters passed a public referendum to
legalize table games in the State's casinos. See
Md. Code State Gov't 9-1A-01, et seq. Maryland
Live! Casino seized the new business opportunity. Starting
before the referendum was passed, the Casino prepared to open
table games. (Pls.' Opp., ECF No. 63, Ex. 2). In addition
to transforming its floor space to make room for the tables,
the Casino realized it needed about 780 new dealers to staff
them. Id. The Casino settled on a job training
program to fill its needs, (id.), and announced in
widespread advertising the dealer training school at the
heart of this case, (ECF No. 63, Ex. 1, Townsend Dep. at
on the Casino hit a snag: It received notice from the
Maryland Higher Education Commission (MHEC) that use of the
word "school" in its advertising of the training
program was unlawful unless MHEC approved the program or the
program was sponsored by an accredited institution.
(Defs.' Mot., ECF No. 58, Ex. 6). Because MHEC approval
would take too long the Casino sought sponsorship. It found
Anne Arundel Community College a willing partner, and the two
arranged to jointly administer the program. The parties
agreed that the Casino would bear responsibility for, among
other things, instructors, scheduling, curriculum (AACC would
only review it), and training facilities, and AACC would
provide certificates on course completion and register
students. (ECF No. 58, Ex. 7).
in the dealer school was restricted. The Casino screened
applicants for friendliness, hand dexterity, and an affinity
for math. (ECF No. 63, Ex. 14, Lukoski Decl. at ¶¶
6-8; ECF No. 58, Ex. 2, Townsend Dep. at 27). The Casino was
serious about those requirements: Of the 8, 600 who applied,
only 831 were selected for the program. (ECF No. 63, Ex. 1,
Townsend Dep. at 31). Operating out of vacant store fronts in
Marley Station, the training program opened on January 7,
2013, and was scheduled to run for twelve weeks.
(Id. at 7). In addition to a mock casino floor on
which the trainees would learn, the facility contained an
office for the Maryland Casino Live! HR department, (ECF No.
63, Ex. 14, Lukoski Decl. at ¶ 19), and another for the
Maryland State Lottery and Gaming Control Agency (SLGCA),
(ECF No. 63, SLGCA Dep., Ex. 20. at 9-10, 19-21).
in the program learned through observation and practice.
Trainees were expected to mirror dealing methods performed by
Casino employees: they were to stand up straight; keep their
hands on the table; maintain the stance and bearing of
dealers; and cut cards and distribute payouts as they were
shown. (ECF No. 63, Lukoski Decl. at ¶¶ 13-14; Ex.
16, Kroll Dep. at 62). Throughout the program, Casino
employees were monitoring the trainees' progress and
sorted them to particular table games depending on the skills
they presented. (ECF No. 63, Lukoski Decl. at ¶ 16). The
Casino dismissed trainees who fell short of those performance
requirements. (Id.; ECF No. 63, Sanders Dep., Ex. 12
Casino's HR department also prepared trainees for
employment. Trainees completed W-2 forms during the program,
(ECF No. 63, Kroll Dep. at 74-75),  and Local 27 officials,
representing the union responsible for casino employees,
attended the program at the Casino's request, to recruit
trainees and collect authorization cards, (ECF No. 63,
Townsend Dep. at 102; Ex. 24 (Local 27 Talking Points);
Hipkins Deck, Ex. 4 at ¶¶ 6-7, 9-10, 11-13).
half-way through the program, the Casino made conditional
offers of employment to more than 70% of the program
participants, (ECF No. 63, Townsend Dep. at 65-66), though
some participants considered these full offers of employment,
(ECF No. 63, Kroll Dep. at 73-74). One condition of these
offers was obtaining a gaming license from SLGCA. If a
participant failed to meet the requirements for a license,
such as failing a background check, she was ineligible for
employment, and at least one participant was removed from the
program for that reason. (ECF No. 63, Townsend Dep. at 40-41;
Pocknett Decl., Ex. 21 at ¶ 12).
program ended on March 31 st, and orientation was held
immediately after on April 1st and 2nd. During those two
days, trainees were paid to watch HR videos, and complete
other employment related requirements, and to brush up on
their table games. (See ECF No. 63. Lukoski Decl. at
¶ 23). They also tried on uniforms for which they had
been fitted weeks earlier. (ECF No. 63, Ex. 26). Only a few
days later, on April 11, 2013, the Casino opened its table
games to the public.
plaintiffs are all former members of the Casino's dealer
program. They filed suit against the Casino in October 2014
under the Fair Labor Standards Act, the Maryland Wage and
Hour Law, and the Maryland Wage Payment Collection Act. (ECF
No. I). The court granted the Casino's motion
to dismiss, (ECF Nos. 10-11), but the Fourth Circuit
reversed, (ECF No. 16). After discovery, and a court order
granting class certification under Federal Rule of Civil
Procedure 23 for the state law claims but denying a motion
for equitable tolling of the statute of limitations under the
FLSA, (ECF Nos. 34-35), the Casino now moves for summary
judgment, (ECF No. 58).
Federal Rule of Civil Procedure 56(a) summary judgment should
be granted "if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a).
"A dispute is genuine if 'a reasonable jury could
return a verdict for the nonmoving party.'"
Libertarian Party of Va. v. Judd, 718 F.3d 308, 313
(4th Cir. 2013) (quoting Dulaney v. Packaging Corp. of
Am., 673 F.3d 323, 330 (4th Cir. 2012)). And "[a]
fact is material if it 'might affect the outcome of the
suit under the governing law.'" Id.
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). Accordingly, "the mere existence of
some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment[.]" Anderson, 477 U.S. at
247-48. The court must view the evidence in the light most
favorable to the nonmoving party, Tolan v. Cotton,
134 S.Ct. 1861, 1866 (2014) (per curiam), and draw all
reasonable inferences in that party's favor, Scott v.
Harris, 550 U.S. 372, 378 (2007) (citations omitted);
see also Jacobs v. N.C. Admin. Office of the Courts,
780 F.3d 562, 568-69 (4th Cir. 2015). At the same time, the
court must "prevent factually unsupported claims and
defenses from proceeding to trial." Bouchat v. Bait.
Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir.
2003) (quoting Drewitt v. Pratt, 999 F.2d 774,
778-79 (4th Cir. 1993)).
FLSA requires employers to compensate employees "for all
work" performed. Tennessee Coal, Iron & R. Co.
v. Muscoda Local No. 123,321 U.S. 590, 602 (1944),
superseded by statute on other grounds,
Portal-to-Portal Act of 1947, Pub. L. No. 104-188, 110 Stat.
1928. The Act defines "employee" liberally as
"any individual employed by an employer," 29 U.S.C.
§ 203(e)(1), and the Supreme Court has found within that
broad guidance an intention to cover "trainees,
beginners, apprentices, or learners," Walling v.
Portland Terminal Co.,330 U.S. 148, 151 (1947). The
Supreme Court also has defined "work" and
"employment," finding that by those terms Congress
"was referring to" their common usage-"as
meaning physical or mental exertion (whether burdensome or
not) controlled or required ...