United States District Court, D. Maryland
SHABRIA “BRI” WILLIAMS, et al., Individually and on behalf of all other similarly situated individuals. Plaintiff,
GGC-BALTIMORE, LLC d/b/a/Gentlemen's Gold Club. Defendant.
Mark Coulson United States Magistrate Judge.
case is brought under the Fair Labor Standards Act (FLSA) for
unpaid wages by Plaintiff Shabria “Bri” Williams
against her former employer, Defendant GGC-Baltimore, LLC,
doing business as Gentlemen's Gold Club. Pursuant to
Standing Order 2018-4 and 28 U.S.C. § 636(c), the case
was assigned directly to a magistrate judge and the parties
consented to proceed before that magistrate judge. (ECF No.
14). Pending is Plaintiff's Motion for Notice to
Potential Plaintiffs and for Conditional Certification, (ECF
No. 15), Defendant's Opposition, (ECF No. 19), and
Plaintiff's Reply. (ECF No. 22). No hearing is necessary.
See Loc. R. 105.6 (D. Md. 2018). For the reasons
below, Plaintiffs' motion is GRANTED in part and DENIED
FLSA permits plaintiffs to “maintain a collective
action against their employer for violations under the act
pursuant to 29 U.S.C. § 216, ” Quinteros v.
Sparkle Cleaning, Inc., 532 F.Supp.2d 762, 771 (D. Md.
2008), which provides in pertinent part:
An action...may be maintained against any employer...by any
one or more employees for and in 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
29 U.S.C. § 216(b). Section 216(b) establishes an
“opt-in” scheme, “whereby potential
plaintiffs must affirmatively notify the Court of their
intentions to be a party to the suit.”
Quinteros, 532 F.Supp.2d at 771 (citing Camper
v. Home Quality Management, Inc., 200 F.R.D. 516, 519
(D. Md. 2000)). The FLSA certification process typically
occurs in two stages. First, at 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 is appropriate.”
Butler v. Direct SAT USA, LLC, 876 F.Supp.2d 560,
566 (D. Md. 2012) (citations and internal quotations
omitted). Second, at the “decertification stage,
” once discovery is closed, the court conducts a more
stringent inquiry to determine whether the plaintiffs are in
fact “similarly situated” as required by section
216(b) and to make a final determination regarding whether
the case should proceed as a collective action. Rawls v.
Augustine Home Health Care, Inc., 244 F.R.D.
298, 300 (D. Md. 2007) (citations omitted).
notice stage, a plaintiff only need to make a
“relatively modest factual showing” that they are
similarly situated to potential opt-in plaintiffs.
Marroquin v. Canales, 236 F.R.D. 257, 259 (D. Md.
2006) (citation omitted). “A group of potential
plaintiffs are ‘similarly situated' when they
together were victims of a common policy or scheme or plan
that violated the law.” Id. at 260 (citation
omitted). While mere allegations in a complaint are
insufficient to show substantial similarity, a plaintiff may
make an adequate factual showing by affidavit. Id.
at 259-60 (citation omitted). Such an affidavit must set
forth more than “vague allegations” with
“meager factual support” to establish substantial
similarity. D'Anna v. M/A-COM, Inc., 903 F.Supp.
889, 894 (D. Md. 1995). As noted above, however, plaintiffs
need not conclusively establish that they are similarly
situated until the post-discovery decertification stage.
Rawls v. Augustine Home Health Care, Inc., 244
F.R.D. 298, 300 (D. Md. 2007).
this modest showing, Plaintiff supplies her own affidavit.
(ECF No. 15-2). In her affidavit, she alleges that she worked
for Defendant from October 2016 through September 2018.
(Id. at ¶ 2). She alleges that during this time
period she would typically work approximately twenty to
thirty hours a week and occasionally work more than forty
hours a week. (Id. at ¶ 5). She further alleges
that during her employment she was never paid an hourly wage
and was classified as an independent contractor.
(Id. at ¶¶ 7-9). It also alleges that
based upon information and belief “from at least
January 2016 through the present, Defendant has classified
all exotic dancers at its Gentlemen's Gold Club as in
dependent contractors and not as employees.”
(Id. at ¶ 11). Nevertheless, Plaintiff alleges
within the affidavit that Defendant “controlled all
aspects of the job duties” and “had the ability
to discipline all dancers, fine all dancers, fire all
dancers, and adjust my schedule and the schedule of all other
dancers.” (Id. at ¶¶ 13-14). She
also alleges that Defendant set all pricing, schedules, and
maintained a system of fees and fines to which dancers were
subject. (Id. at ¶¶ 16, 18, 19, 24).
argues that conditional certification and notice are
inappropriate because Plaintiff only submitted one affidavit
based on hearsay and thus failed to meet her burden. This
argument, however, is unpersuasive. First, a plaintiff moving
for conditional certification need not file multiple
affidavits to meet her burden. See McFeeley v. Jackson
Street Entm't, LLC, No. DKC-12-1019, 2012 WL 5928902
(D. Md. Nov. 26, 2012) (granting a motion for conditional
class certification based upon a single exotic dancer's
affidavit); Calder v. GGC-Baltimore, LLC, CIV.
BPG-12-2350, 2013 WL 3441178 (D. Md. July 8, 2013) (same).
Second, “hearsay that may be inadmissible at trial may
be considered at the notice stage where the affiant has
knowledge of the statement.” Calder, 2013 WL
3441178, at *2 n. 1 (2013) (citing Robinson v. Empire
Equity Grp., Inc., No. WDQ-09-1603, 2009 WL 4018560, at
*3, nn. 16-17 (D. Md. Nov. 18, 2009) (considering
affiant's statement regarding knowledge of
defendant's compensation of certain loan officers that
affiant learned from speaking to those loan officers about
how they were paid)). Accordingly, this Court finds that
Plaintiff has made adequate factual allegations to meet her
modest burden in that she is similarly situated to other
exotic dancers who worked for Defendant.
found that Plaintiff is similarly situated to other exotic
dancers who worked for Defendant, notice must be provided.
Plaintiff requests that this Court approve notice to
“all current and former exotic dancers that worked at
Defendant's Gold Club in Baltimore, Maryland at any time
from January 2016 through the present” through first
class mail, e-mail, and posting within the dressing room.
(ECF No. 15-1 at 15-16). To facilitate notice, Plaintiff asks
this Court to require Defendant to disclose the “names,
last known home addresses, email addresses (business and
home), and home and cellular telephone numbers” of any
potential plaintiffs that would fit within the above defined
class. (Id. at 15). In response, Defendant only
challenges Plaintiff's date range arguing that it
violates the two-year statute of limitations period imposed
by the FLSA. (ECF No. 19-1).
Court's broad discretion over opt-in notices is guided by
an overarching goal to “provide accurate and timely
notice concerning the pendency of the collective action, so
that potential plaintiffs can make informed decisions about
whether to participate.” Butler, 876 F.Supp.2d
at 575 (quotations and citations omitted). Nevertheless, this
Court “will not order more extensive notification than
is necessary, to reach potential class members [, ]”
unless special circumstances exist. Blake v. Broadway
Services, Inc., 2018 WL 4374915, at *5 (D. Md. 2018)
the information sought, Defendant is directed to supply
Plaintiff with each possible plaintiff's full name, last
known residential address, and last known personal and work
e-mail addresses. Plaintiff's request for “home and
cellular telephone numbers” is denied for failure to
show any special circumstances to necessitate such
production. See McFeeley, 2012 WL 5928902, at *5 n.
2 (“Absent a showing by plaintiffs of special need for
the disclosure of class members' telephone numbers,
ordering such disclosure is not appropriate.”)
(citation and internal quotation marks omitted).
the time period Defendant opposes, the FLSA statute of
limitations is two years, but may be extended to three years
if the violation of the Act was willful. See 29
U.S.C. § 255(a). An employer is willful in its violation
of the FLSA if the employer knows, or shows reckless
disregard as to whether, its conduct is prohibited by the
FLSA. See McLaughlin v. Richland Shoe Co., 486 U.S.
128, 133 (1988). Plaintiff argues that the alleged violations
were willful, so the appropriate period of time extends from
“January 2016 through the present.” Defendant
asserts that starting in 2016 would violate the FLSA's
two-year statute of limitations and that the proper period
would be from January 2017 to January 2019. While now arguing
that Defendant was willful, Plaintiff fails to advance any
colorable allegations that this Court can interpret as
support for such an allegation. Seeing no basis for using the
three year statute of ...