Tassy v. Lindsay Entm't Enters., Inc., Civil Action No. 3:16-cv-77-RGJ
| Citation | 591 F.Supp.3d 191 |
| Docket Number | Civil Action No. 3:16-cv-77-RGJ |
| Decision Date | 14 March 2022 |
| Parties | Gloria TASSY, individually & on behalf of all similarly situated, Plaintiffs v. LINDSAY ENTERTAINMENT ENTERPRISES, INC., Defendant |
| Court | U.S. District Court — Western District of Kentucky |
Andrew R. Frisch, Morgan & Morgan, Plantation, FL, Joseph Corey Asay, Morgan & Morgan, Lexington, KY, for Plaintiffs Gloria Tassy, Angel Vincent, Melissa J. McGrew, Kaitlyn Bartram, Kristina Dunlap.
Andrew R. Frisch, Morgan & Morgan, Plantation, FL, for Plaintiff Stacia Goldsmith.
J. Gregory Joyner, J. Gregory Joyner, PLLC, Louisville, KY, for Defendant.
Gloria Tassy ("Tassy") and all similarly situated plaintiffs (together the "Plaintiffs"), moved for partial summary judgment [DE 120-1]. Lindsay Entertainment Enterprises, Inc. ("Defendant") opposed [DE 124-1] and Plaintiffs replied [DE 125]. Defendant has also moved to decertify Plaintiffs' class [DE 121-2] and Plaintiffs have responded in opposition [DE 123].
Defendant failed to reply and the time for doing so has passed. Briefing is complete, and the matter is ripe. For the reasons below, the Court DENIES Defendant's Motion to Decertify the Class [DE 121-2] and GRANTS Plaintiffs' Motion for Partial Summary Judgment [DE 120-1].
Defendant owned and operated an adult night club called The Godfather in Louisville, Kentucky. [DE 120-1 at 588]. The Godfather is a night club that features exotic female dancers known as entertainers. [Id. ]. Plaintiffs worked for Defendant at The Godfather as entertainers from May 2014 through January 2016. [DE 1 at 1–2]. The entertainers' primary duties were to perform dances at designated areas in The Godfather at prices set by Defendant. [DE 102-1 at 589]. Defendant made money through the sale of food, alcohol, admission, and rent charged to the entertainers. [Id. ]. At the time in question, Defendant charged entertainers rent for all couch dances and VIP performances. [Id. ]. Defendant characterized Plaintiffs and other entertainers as independent contractors and did not pay them a direct wage. Plaintiffs did receive commission on a portion of drink sales that were credited to Plaintiffs each week. [Id. ]. When a patron purchased a drink for an entertainer, the entertainer would receive commission for that sale. [Id. ]. Plaintiffs claim that Defendant paid them well below minimum wage even after commissions earned on drink sales were calculated into their pay. [Id. ]. Other than drink commissions the only other income for entertainers consisted of tips received from Defendant's patrons. [Id. at 593].
Although contested by Defendant, Plaintiffs claim Defendant scheduled the days and times of each shift that entertainers were required to work. [Id. at 590]. Plaintiffs were also required to clock in and out for each shift. [Id. ]. After clocking in at The Godfather, entertainers were required to pay Defendant a house fee of $25 per shift. [Id. at 590–91]. Entertainers were subject to fines for arriving late, failing to work a scheduled shift, or leaving early. [Id. ]. Entertainers would typically learn they had been fined when their commission from drink sales turned up short. [Id. at 593]. Defendant required entertainers to wear at least three pieces of clothing, including heels, and had authority to determine whether entertainers' outfits were suitable. [DE 124-1 at 797–98]. Notably, entertainers supplied their own apparel and makeup. [DE 102-1 at 594]. An entertainer was required to perform on stage at The Godfather when her name was called. [Id. at 591]. While on stage, entertainers would receive tips, which they could keep, but entertainers were not always allowed to pick the song. [Id. ]. At the conclusion of their shift, entertainers would tip the bartenders, DJs, and doormen as designated in the entertainers' job application paperwork.1 Defendant also required entertainers to accept drinks from patrons and maintained discretion to enforce this rule. [DE 102-1 at 591]. Entertainers were subject to a noncompete which prohibited them from dancing at any other club in Louisville while working at The Godfather. [Id. ]. However, entertainers could dance at other clubs outside of Louisville. [DE 124-1 at 800].
The Godfather maintained ultimate control over the Business. The Godfather was responsible for advertising and marketing the entertainers' services. [DE 102-1 at 593]. The Godfather employed bartenders, servers, security, DJs, and a door man. [Id. ]. It also paid the utilities and provided the facility. [Id. at 594]. Defendant did not require any previous experience or specialized training for entertainers to work at The Godfather, but they were required to audition if they lacked the appropriate experience. [Id. ]. Plaintiffs were hired on a "day-to-day" basis and all of them signed independent contractor agreements. [DE 124-1 at 802]. However, entertainers like Plaintiffs were integral to Defendant's business as an adult entertainment club. [DE 102-1 at 594].
Tassy filed suit against Defendant pursuant to 29 U.S.C. § 216(b) of the Fair Labor Standards Act ("FLSA"). [DE 1 at 1]. Tassy alleged that Defendant violated 29 U.S.C. § 203 and failed to pay Tassy a minimum wage pursuant to 29 U.S.C. § 206. [Id. at 2–3]. On March 28, 2017, the Court granted Tassy's motion for conditional class certification so this action could proceed collectively on behalf of all Plaintiffs. [DE 38]. A total of six additional dancers joined Tassy's class. [DE 121-2 at 757]. Defendant now moves to decertify the class based on the limited number of class members. [Id. at 756]. Plaintiffs also move for partial summary judgement on their claims under the FLSA. [DE 120-1].
Defendant moves to decertify Plaintiffs' conditionally formed class. [DE 121-2 at 756]. Defendant argues that Plaintiffs have failed to meet the numerosity requirement under Federal Rule of Civil Procedure 23(a)(1) and that the merits of the case do not support maintenance of a class action. [Id. at 1–3].
To proceed collectively under the FLSA, plaintiffs must be similarly situated. 29 U.S.C. § 216(b) ; O'Brien v. Ed Donnelly Enters., Inc. , 575 F.3d 567, 583 (6th Cir. 2009). As a result, the "lead plaintiffs bear the burden of showing that the opt-in plaintiffs are similarly situated to the lead plaintiffs." O'Brien , 575 F.3d at 583. "Unlike class actions under Fed. R. Civ. P. 23, collective actions under the FLSA require putative class members to opt into the class." Id. at 583 ; see also 29 U.S.C. § 216(b) (). Courts have consistently held that even named plaintiffs in collective actions must file consents. Frye v. Baptist Mem'l Hosp., Inc. , 495 F. App'x 669, 675–76 (6th Cir. 2012) (); Harkins v. Riverboat Servs., Inc. , 385 F.3d 1099, 1101 (7th Cir. 2004) ( ); In re Food Lion, Inc. , Nos. 97-1443, 97-1444, 1998 WL 322682, at *13 (4th Cir. June 4, 1998) ().
Defendant first argues that Plaintiffs have failed to meet the numerosity requirement of Federal Rule of Civil Procedure 23(a)(1). [DE 121-2 at 756]. Plaintiffs contend that Rule 23 is inapplicable, and that Plaintiffs have met the requirements under 29 U.S.C. § 216(b). [DE 123 at 783]. The Court agrees with Plaintiffs that Rule 23 is not applicable to this proceeding. The Court entered an order conditionally certifying Plaintiffs' class under 29 U.S.C. § 216(b). [DE 38]. "A FLSA collective action differs from a class action brought under Federal Rule of Civil Procedure 23." Bassett v. Tenn. Valley Auth. , No 5:09-CV-00039, 2013 WL 665068, at *2 (citing Comer v. Wal–Mart Stores, Inc. , 454 F.3d 544, 546 (6th Cir. 2006) ). Therefore, the Court must examine the class under § 216(b) instead of Rule 23. See Bassett , 2013 WL 665068, at *2.
Other than Tassy, six additional plaintiffs have opted into the putative class and filed the required written consents. [DE 121-2 at 756]. Under § 216(b), the Plaintiffs do not need to prove numerosity or likelihood of success on the underlying claims, but Plaintiffs must show that they are similarly situated. O'Brien , 575 F.3d at 583. During the time in question, all Plaintiffs held the same position and performed the same duties. [DE 123 at 786]. Plaintiffs were compensated in the same manner and have the same claims for unpaid minimum wages. [Id. ]. Moreover, Defendant uniformly classified Plaintiffs as independent contractors. [Id. ]. Tassy has carried her burden by presenting evidence that all Plaintiffs are similarly situated. O'Brien , 575 F.3d at 583. Defendant's Motion to Decertify the Class [DE 121-2] is DENIED .
Plaintiffs move for summary judgment on their FLSA claim against Defendant. [DE 120-1 at 588]. First, Plaintiffs argue that they are considered employees under the FLSA. [Id. at 596]. Second, Plaintiffs claim that Defendant's...
To continue reading
Request your trial