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Rosa Nehmelman For Herself and On Behalf of Similarly Situated Others v. Penn National Gaming

September 29, 2011


The opinion of the court was delivered by: Magistrate Judge Finnegan


Plaintiff Rosa Nehmelman has filed suit on behalf of herself and similarly situated others seeking to recover unpaid wages allegedly due under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and the Illinois Minimum Wage Law ("IMWL"), 820 ILCS 105/1 et seq. Specifically, Plaintiff charges Defendants Penn National Gaming, Inc. ("PNGI") and its wholly-owned subsidiary Empress Casino Joliet d/b/a Hollywood Casino Joliet ("Empress") (collectively "Defendants") with violating both wage statutes by failing to pay employees in the Games Department for all hours worked in excess of 40 per week. Plaintiff now moves for judicially supervised notice as to Empress under 29 U.S.C. § 216(b). For the reasons set forth below, the motion is granted. Empress's related motion to strike allegations in two of Plaintiff's supporting declarations is denied.


A. Declarations

In support of her motion for conditional certification, Plaintiff initially submitted her own declaration, and a declaration from Ross Sansone, a former Empress employee who filed a consent to be a party in this case. (Doc. 45-1). Empress in turn submitted twelve declarations from current employees (described below) to oppose certification. Empress also moved to strike significant portions of the declarations from Plaintiff and Sansone, arguing that certain statements were conclusory, speculative, vague and/or not based on personal knowledge, and that other statements constituted inadmissible hearsay. (Doc. 48). When the parties appeared for a hearing on August 11, 2011 (on an unrelated motion), this Court voiced concerns regarding the sufficiency of the declarations from Plaintiff and Sansone.*fn2 Plaintiff then supplemented the record with new declarations from former Empress employees and Opt-In plaintiffs (the "Opt-Ins") Gustavo DeGuzman, William Rapka and Bruce Bender.*fn3 (DeGuzman Decl., Doc. 81; Rapka Decl., Doc. 83, Ex. D; Bender Decl., Doc. 83, Ex. E). The declarations submitted by Empress are from: Human Resources Manager Margaret Deering; Casino Operations Managers John Allison, Chris Costa, Albert Sikirdji and Kevin Taylor; Casino Controller Gordon Hinckle; Dealers David Herron, Marianna Heredia and Franklin Foster; and Slot Representatives Vickie Hejna, Sheryl McMillin and Cordelia Saunders. (Deering Decl., Doc. 55-1; Allison Decl., Doc. 55-9; Costa Decl., Doc. 55-2; Sikirdji Decl., Doc. 55-7; Taylor Decl., Doc. 55-11; Hinckle Decl., Doc. 55-10; Herron Decl., Doc. 55-3; Heredia Decl., Doc. 55-4; Foster Decl., Doc. 55-5; Hejna Decl., Doc. 55-6; McMillin Decl., Doc. 55-8; Saunders Decl., Doc. 55-12). Empress also provided the Court with a copy of Plaintiff's August 9, 2011 deposition transcript, observing that it contradicted certain statements in her declaration. The relevant facts are largely drawn from these documents.

B. Allegations

Plaintiff worked for Empress as a Dealer in the Games Department from June 1992 until she was terminated on December 15, 2010. (Pl. Decl., Doc. 30-2, Ex. 1 ¶¶ 2, 3). Ross Sansone worked for Empress from February 2009 to April 2011, serving as a Slot Representative ("Slot Rep") and Dual Rate Supervisor in the Games Department. (Sansone Decl., Doc. 46 ¶¶ 2, 3, 5). Gustavo DeGuzman worked for Empress as a Slot Rep from July 26, 1999 until May 31, 2011. (DeGuzman Decl. ¶ 1). William Rapka worked for Empress from approximately November 1997 until he was discharged in May 2011. Throughout most of his employment, he served as a Dual Rate Supervisor, spending about 80% of his time working as a Dealer, and about 20% of his time supervising other Dealers. (Rapka Decl. ¶ 1). Bruce Bender worked as a Dealer for Empress from May 1996 through August 2010. (Bender Decl. ¶ 1).

Plaintiff, Sansone, DeGuzman and Bender were all paid an hourly rate plus tips, and were considered non-exempt employees entitled to receive overtime compensation for hours worked in excess of 40 per week. (Pl. Decl. ¶¶ 5, 6, 14; Sansone Decl. ¶¶ 5, 6, 12; DeGuzman Decl. ¶¶ 2, 3; Bender Decl. ¶¶ 3, 5). Rapka was also an hourly employee, but he only received tips when he worked as a Dealer and not as a Supervisor. (Rapka Decl. ¶ 3). All declarants claim that they "have received some overtime compensation, but . . . have not received overtime compensation for all hours worked" in excess of 40 per week. (Pl. Decl. ¶ 13; Sansone Decl. ¶ 11; DeGuzman Decl. ¶ 3; Bender Decl. ¶ 5; Rapka Decl. ¶ 5).

Plaintiff and the Opt-Ins contend that Empress follows certain practices and policies that result in employees in the Games Department not receiving their required overtime compensation. Plaintiff initially identified seven such policies: (1) Empress has an unwritten policy requiring employees to clock in 7 minutes before their shifts start, but they are not paid for those 7 minutes of work; (2) Empress's Timekeeping Policy requires employees to clock out no later than 7 minutes after their shifts end, and they are not paid for any work performed during those 7 minutes; (3) Dealers and Slot Reps work off-the-clock by attending mandatory pre-shift meetings twice a week for 15 minutes; (4) Empress requires Dealers and Slot Reps to participate in unpaid training courses outside their regular shifts;

(5) Empress pays employees by the shift rather than by the hours reflected on their time cards; (6) Empress requires employees to change into their uniforms at the casino, which takes about 45 minutes, but employees do not get paid for any of that pre-shift activity; and

(7) Empress calculates overtime on a two-week rather than weekly basis.

In response to arguments raised by Empress and facts discovered through Plaintiff's

deposition, Plaintiff has decided to focus on only the first four of these alleged improper pay practices which, she and the Opt-Ins claim, apply to all similarly situated Empress employees. In that regard, Plaintiff seeks to represent a class of current and former Dealers and Slot Reps who worked for Empress and PNGI from January 3, 2008 to the present. She now asks the Court to approve conditional certification of a collective class against Empress pursuant to § 216(b) of the FLSA, and to allow her to send notice to other potential class members.

Empress objects that conditional certification is inappropriate in this case, arguing that "many policies about which Plaintiff complains are either completely different than Plaintiff represents, are not unlawful or do not exist at all." (Doc. 55, at 2). Empress seeks to strike large portions of the declarations signed by Plaintiff and Sansone on the grounds that they are based on improper supposition and hearsay rather than personal knowledge. In addition, Empress claims that the declarations and other evidence it submitted in opposition to class certification demonstrate that the information provided by Plaintiff and the Opt-Ins is inaccurate, and that a class-wide determination regarding the impact of the casino's policies "is not possible due to the individualized inquiry that would be required." (Id.)


A. Standard of Review

Section 216(b) of the FLSA provides that employees may bring a collective action against an employer to recover unpaid overtime compensation on behalf of themselves and other "similarly situated" employees. 29 U.S.C. § 216(b); Alvarez v. City of Chicago, 605 F.3d 445, 448 (7th Cir. 2010); Blakes v. Illinois Bell Tel. Co., No. 11 C 336, 2011 WL 2446598, at *2 (N.D. Ill. June 15, 2011). Unlike a class action under Rule 23(b), in which potential plaintiffs are included in the class unless they opt-out, a § 216(b) collective action requires potential plaintiffs to "affirmatively opt-in to the suit by filing a written consent with the court." Alvarez, 605 F.3d at 448. District courts have broad discretion in managing collective actions, and may facilitate notice to potential plaintiffs in order to implement the opt-in procedure. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989); Gromek v. Big Lots, Inc., No. 10 C 4070, 2010 WL 5313792, at *2 (N.D. Ill. Dec. 17, 2010). "Neither the FLSA nor the Seventh Circuit has set forth criteria for determining

whether employees are 'similarly situated'" such that notice is appropriate, but most courts follow a two-step inquiry. Rottman v. Old Second Bancorp, Inc., 735 F. Supp. 2d 988, 990 (N.D. Ill. 2010) (quoting Hundt v. DirectSat USA, LLC, No. 08 C 7238, 2010 WL 2079585, at *2 (N.D. Ill. May 24, 2010)). At the first step, "the court looks for no more than a 'minimal showing' of similarity." Howard v. Securitas Security Servs., USA Inc., No. 08 C 2746, 2009 WL 140126, at *5 (N.D. Ill. Jan. 20, 2009). See also Nicholson v. UTi Worldwide, Inc., No. 3:09-CV-722-JPG-DGW, 2011 WL 250563, at *2 (S.D. Ill. Jan. 26, 2011) (describing the burden as a "modest factual showing"). This is a lenient standard, but "a modest factual showing cannot be founded solely on allegations of the complaint; some factual support must be provided, such as in the form of affidavits, declarations, deposition testimony, or other documents." DeMarco v. Northwestern Memorial Healthcare, No. 10 C 397, 2011 WL 3510905, at *1 (N.D. Ill. Aug. 10, 2011) (quoting Anyere v. Wells Fargo, Co., No. 09 C 2769, 2010 WL 1542180, at *2 (N.D. Ill. Apr. 12, 2010)). A plaintiff must demonstrate, through these devices, "a factual nexus between the plaintiff and the proposed class or a common policy that affects all the collective members." Howard, 2009 WL 140126, at *2.

In making a determination as to similarity, the court need not accept the plaintiff's allegations as true as it would with a motion to dismiss. "Rather, the court evaluates the record before it, including the defendant's oppositional affidavits, to determine whether the plaintiffs are similarly situated to other putative class members." Rottman, 735 F. Supp. 2d at 990 (quoting Hundt, 2010 WL 2079585, at *2). At the same time, the court does not consider the merits of a plaintiff's claims, or witness credibility. Marshall v. Amsted Indus., Inc., No. 10-CV-0011-MJR-CJP, 2010 WL 2404340, at *3 (S.D. Ill. June 16, 2010); Blakes, 2011 WL 2446598, at *6.

The second step, occurring after discovery, is more stringent. "Once it is known which employees will be part of the class, the Court must reevaluate the conditional certification to determine whether there is sufficient similarity between the named and opt-in plaintiffs to allow the matter to proceed to trial on a collective basis." Rottman, 735 F. Supp. 2d at 990 (quoting Jirak v. Abbott Laboratories, Inc., 566 F. Supp. 2d 845, 848 (N.D. Ill. 2008)). At that time, a defendant may "move to decertify the case or divide the class into subclasses." Betancourt v. Maxim Healthcare Servs., Inc., No. 10 C 4763, 2011 WL 1548964, at *5 (N.D. Ill. Apr. 21, 2011) (quoting Smallwood v. Illinois Bell Tel. Co., 710 F. Supp. 2d 746, 753 (N.D. Ill. 2010)).

This case is currently at step one of the analysis, and Plaintiff insists that she has easily satisfied her lenient burden of showing that she and other Dealers and Slot Reps are similarly situated with respect to Empress's policies and pay practices. Empress disagrees, arguing that Plaintiff's supporting declarations are deficient, and that she cannot establish that members of the putative class were similarly affected by the casino policies she describes.

B. Factual Nexus Binding the Putative Collective

The Court next turns to whether Plaintiff has sufficiently demonstrated that a common policy affects all the putative class members and creates a "factual nexus" between them. Howard, 2009 WL 140126, at *2. As noted, for purposes of this motion, Plaintiff focuses on four policies:

(1) Empress has an unwritten policy requiring Dealers and Slot Reps to clock in 7 minutes before their scheduled shifts, but rounds the time so that employees are not paid for those extra minutes of work;

(2) Empress has a policy of not compensating Dealers and Slot Reps for closing activities or for time spent waiting for a shift change ("wait time") if these take 7 minutes or less, and of rounding the end time to reflect the scheduled, as opposed to actual, clock out time;

(3) Dealers and Slot Reps must participate in unpaid meetings before their scheduled shifts; and

(4) Dealers*fn4 are not compensated for time spent in job-related training. (Doc. 58-1, at 9). The Court considers each in turn.

1. Time Clock and Rounding Issues

Plaintiff first claims that Empress's time clock and rounding policies factually bind the putative class. Specifically, she says that Empress requires employees to clock in 7 minutes before their shifts start, and to clock out no more than 7 minutes after their shifts end. At the same time, Empress rounds actual clock time to reflect scheduled shift times. For example, if an employee clocks in at 8:53 a.m. for a 9:00 a.m. shift, then her time is rounded up to 9:00 a.m. Similarly, if an employee clocks out at 5:07 p.m. for a shift ending at 5:00 p.m., then her time is rounded down to 5:00 p.m. (Deering Decl. ¶ 13). As a result, employees who start working immediately after clocking in 7 minutes early do not get paid for those extra minutes of work. (See, e.g., Doc. 30-2, Ex. B) (showing Plaintiff clocked-in at 10:53 a.m. on April 12-16, 19 and 20, 2010 but was paid for time starting at 11:00 a.m.). Similarly, since employees are required to continue working until their games end, their replacement workers arrive, or they complete various closing activities, they sometimes work up to 7 minutes past their shift end times, but are not paid for those extra minutes of work either.*fn5 Plaintiff claims that these policies deprive employees of pay for "at least, 35 minutes of overtime each week, but often more." (Pl. Decl. ¶ 20).

a. Early Clock-In

Plaintiff identifies several Empress employees who told her about the early clock in policy, including Games Department Director Toni Johnson, and Casino Operations Managers Chris Costa, Albert Sikirdji and Kevin Taylor. (Pl. Dep., Doc. 79-1, at 81-82). DeGuzman claims that Supervisors Pamela Nales, Darlene Phillips and Steve Hurdle all informed him that he had to be at work "on time," meaning 7 minutes before his shift start time. Costa and Taylor also told DeGuzman that being "on time" meant clocking in 7 minutes before his shift began. (DeGuzman Decl. ¶ 10). Rapka says that he received the same information from Costa and another Casino Operations Manager, Greg Mace, and Bender confirms that Johnson told him about the policy. (Rapka Decl. ¶ 12; Bender Decl. ¶ 11). Rapka and Bender further claim that the managers communicated this policy during pre-shift briefings attended by other Dealers and Slot Reps. (Id.; Bender Decl. ¶ 11).

In order to ensure that they were "on time," Plaintiff, DeGuzman, Rapka and Bender all lined up with other Dealers and Slot Reps "at the time clock to clock in when the time clock hit seven minutes before the shift began." (DeGuzman Decl. ¶ 11; Pl. Dep., at 71; Rapka Decl. ¶ 13; Bender Decl. ¶ 12). Employees who did not follow this policy "would get an ear full from supervisors" and "[i]f it became a problem it was understood you could be written up." (Rapka Decl. ¶ 13; Bender Decl. ¶ 12). Plaintiff testified at her deposition that if employees did not clock in at the "seven-minute mark," supervisors would "tell you about it." (Pl. Dep., at 77, 79). As Plaintiff explained, "[y]ou might be clocking at 55 [5 minutes before the shift start time], and you go on the floor. And they'll tell you, 'You're late. You need to be on the floor on time.'" (Id. at 79).

Empress insists that there is no requirement that employees clock in a full 7 minutes before their shifts start. Rather, the Timekeeping Policy states that employees must clock in "no earlier than 7 minutes prior to the start of the shift." (Doc. 30-2, Ex. A) (emphasis added). Human Resources Manager Deering explains that this gives employees a "grace period" when clocking in. (Deering Decl. ¶ 12). Contrary to Empress's suggestion, the existence of such a policy does not conclusively establish that the casino pays employees in compliance with the FLSA. See, e.g., Russell v. Illinois Bell Tel. Co., 575 F. Supp. 2d 930, 935 (N.D. Ill. 2008) ("[T]he mere fact that a company has a written overtime policy does not defeat conditional certification when a plaintiff provides countervailing evidence of a common policy of not paying for overtime.").

Empress has also submitted declarations from Casino Operations Managers Costa, Sikirdji, Allison and Taylor; Dealer and former Slot Rep Hejna; Casino Controller and former Casino Operations Manager Hinckle; and Slot Rep McMillin, confirming that employees can clock in anytime during the 7-minute window, including exactly at the scheduled start time. (Costa Decl. ¶ 7; Hejna Decl. ¶ 6; Sikirdji Decl. ¶¶ 8, 9; McMillin Decl. ¶ 6; Allison Decl. ¶ 6; Hinckle Decl. ¶ 13; Taylor Decl. ¶ 3). In that regard, time cards from Hejna and from Dealer Franklin Foster reflect that both employees sometimes clocked in less than 7 minutes early. (Doc. 63, Exs. 1(A) and (B)).

Even more damaging to Plaintiff's claim, Empress says, is the fact that Bender's and Rapka's time cards also reflect that both employees "clocked in at a variety of times between 7 minutes before the scheduled shift and the start of the shift." (Doc. 87, at 7). Between October 23 and December 17, 2009, Bender worked 38 shifts, but he only clocked in 7 minutes early on 11 occasions. On 12 occasions, he clocked in 6 minutes early, and on 8 occasions, he clocked in 5 minutes early. (Deering Decl. 2, Doc. 87-1 ΒΆ 34; Doc. 87-1, Ex. R). Rapka's time records from April 13 to June 4, 2008 similarly show that over the course of 36 ...

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