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Harbourt v. PPE Casino Resorts Maryland, LLC

United States District Court, D. Maryland

August 2, 2018

Claudia Harbourt, et al.
PPE Casino Resorts Maryland, LLC,


          Catherine C. Blake, United States District Judge

         Six 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, [1] 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.


         In 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 11-12).

         Early 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).

         Enrollment 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).

         Students 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 at 81-82).

         The 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), [2] 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).

         About 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).

         The 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.

         The 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).[3] 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).

         Standard of Review

         Under 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)).


         The 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 ...

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