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Labriola v. Clinton Entertainment Management LLC

United States District Court, N.D. Illinois, Eastern Division

March 28, 2017

MICHELLE LABRIOLA and ANNA LAPINA, individually and on behalf of all persons similarly situated as class representative under Illinois Law and/or as members of a Collective under the Fair Labor Standards Act, Plaintiffs,


          REBECCA R. PALLMEYER United States District Judge

         For a period in 2015, Plaintiffs Michelle Labriola and Anna Lapina worked as exotic dancers at the Pink Monkey, a club operated by Clinton Entertainment, LLC (“Defendant” or “Club”). Plaintiffs claim that they were paid less than the federal and state minimum wage, that they were not paid overtime wages, and that the Club unlawfully confiscated a portion of their tips. They brought a putative class action on behalf of all dancers at the Pink Monkey, alleging violations of the Fair Labor Standards Act (FLSA), the Illinois Minimum Wage Law (IMWL), unjust enrichment, and quantum meruit. Plaintiffs have moved for class certification, and Defendant has moved for summary judgment. For the reasons stated below, summary judgment is granted on the FLSA claims asserted by Labriola and Lapina, and on one of the unjust enrichment/quantum meruit claims. The remaining claims asserted by these Plaintiffs will be dismissed without prejudice. Plaintiffs' motion for class certification is denied as moot.


         I. Factual History

         A. The Pink Monkey

         Labriola and Lapina worked as exotic dancers at the Pink Monkey Gentlemen's Club for a few weeks in January and February 2015 and July and August 2015, respectively. (Def.'s Rule 56.1 Statement of Facts (“DSOF”) [78] ¶ 13-15.) The Club classified its dancers, including Plaintiffs, as independent contractors. The Club sent Plaintiffs 1099 tax forms for 2015 showing their earnings from the fixed dance fees they collected, as well as the fees that the dancers paid, which they could deduct as expenses. (Ex. J to Aff. of Tiffany Kalicki (“Kalicki Aff.”) [79-10]; Ex. K to Kalicki Aff. [79-11].) The 1099 forms for Plaintiffs state that Lapina's 2015 dance fee earnings were $2578, while Labriola's were $6, 280. (Id.)

         In this lawsuit, Plaintiffs contend that they were employees, not contractors. A variety of factors influence the determination of how a worker is properly classified, and the parties have addressed several of them. For example, Plaintiffs claim that the Club controlled their activities by enforcing rules for the dancers, while Defendant claims that these “rules” were not actually enforced, and therefore are really nothing more than “suggestions.” (DSOF ¶ 30.) Many of these disputed “rules”/“suggestions” are contained in the Pink Monkey Gentleman's Club Information (“Handbook”), labelled as “rules, ” “policies, ” or “checklists.” (Ex. 3 to Pl.'s Statement of Add'l Facts (“PSOAF”) [92-2].) Whatever labels are assigned, there is conflicting evidence about how strictly the “rules” were enforced.

         The nature of Plaintiffs' compensation is also disputed. Defendant emphasizes that the dancers were paid based on the number and type of dance they did, rather than by the hour. Specifically, the Club charged customers a fee for each dance. For a “cabana dance, ”[1]customers paid $30, of which the dancer would keep $25 and the Club would keep $5. (DSOF ¶ 35.) Dancers would collect the money for cabana dances directly from customers, and pay the Club the $5 per dance fee at the end of the night. (Ex. 3 to PSOAF at 014.) For private dances in what was known as the VIP room, customers would pay a dance fee that varied based on the length of the dance and whether the customer paid cash or by credit card; the dancer would keep a certain amount of that dance fee according to the following schedule:

Time Cash Credit Card

Total Charge

Dancer's Portion

Total Charge

Dancer's Portion

15 minutes





30 minutes





60 minutes





(DSOF ¶¶ 36-37.)[2] For VIP dances, the customer would pay the Club directly, and the Club would give dancers their portion at the end of night. (DSOF ¶ 40.)

         Fees for the cabana dances and VIP dances were fixed; neither customers nor dancers could change the prices. (Pl.'s Resp. to DSOF [93] ¶¶ 34-36, 38.) The Club kept a record of the number and types of dances performed by each dancer during each night, and distributed each dancer's portion of the fees at the end of the night. (DSOF ¶¶ 39-41.) The Club recorded the total dance fees (including the dancers' portions) and its distributions to the dancers in its accounting statements as part of its gross receipts and costs, respectively. (See Ex. A to Weisberg Aff. [81-1]; Ex. B to Weisberg Aff. [81-2].) Copies of these accounting statements are in the record, and the Club's accountant and tax preparer, Michael Weisberg, confirmed that dance fees were included in the Club's gross receipts. (Weisberg Aff. [81] ¶¶ 1, 3-4, 8.)

         The dance price schedule appears in the Club Handbook, and is posted on the Club wall in the dancers' locker room and by the manager's office. (Pl.'s Resp. to DSOF ¶ 34; Ex. 3 to PSOAF.) The court is not certain who created the Handbook, or the Club's policy for distributing the price schedule to dancers, but it is undisputed that both Plaintiffs at least saw the schedule: Lapina admits that the Club gave her the Handbook, and although Labriola disputes that the Club gave her a copy, she admits that she saw the price schedule posted on the wall. (Pl.'s Resp. to DSOF ¶ 34.) In addition to the dancers' portion of the dance fees paid to the Club, dancers could receive tips from customers; Lapina and Labriola did earn tips in addition to their portion of the dance fees. (Id. at ¶¶ 35, 68-69; Kalicki Aff. [79] ¶ 23.)

         The Handbook also describes various fees that the dancers were required to pay as a condition of performing at the Club. One such fee was the “DJ/House Mom”[3] or “hospitality” fee: $40 per shift every day except Sundays, when the fee was $20. (Ex. 3 to PSOAF at 010; Kalick Aff. ¶ 9.) Another fee was the “house fee, ” which varied depending on the time the dancers checked in. (Id.) A dancer who checked in at 7:00 PM, when the Club opened, paid the smallest amount, and a dancer who checked in at midnight (or 10:00 PM on Sundays), paid the highest fee. (Ex. 3 to PSOAF at 010.) There were, however, various ways that dancers could earn “free house cards, ” essentially vouchers for the house fee, by working on certain days or at certain times. (Id. at 011) The Handbook also describes “dance fee[s]” of $5 per dance (id. at 015)-presumably a reference to the Club's portion of each cabana dance fee charged to customers, rather than an additional fee. (See Kalicki Aff.¶¶ 3-9 (listing the various fees that dancers would pay to the Club, and referring to one fee (not two) of $5 per dance).) The dancers would also pay a “floor host fee” of 15% of a dancer's “total commissions” for the night.[4](Id. at ¶ 9.)

         The parties dispute when the dancers paid these fees.[5] Martinez testified that dancers would pay their house fees after their shifts ended (Martinez Dep. 32:17-21), but Lapina that she paid her fees with cash she brought with her to the Club before she started her shift:

Q: When you come to the club at work at night, generally how much cash do you have on you? . . . .
Q: And what about at the Pink Monkey?
A: Pink Monkey I would come with money I have to pay for house mom and a DJ because I believe, yes, we paid it before we started shift.
Q: So when you were at the Pink Monkey, you would come there with cash that you had from whatever source so you had enough money in order to pay for your shift that night?
A: Yes.
Q: In order to cover any house fee?
A: Yes.
Q: In order to cover any DJ, house mom fee?
A: Yes.
Q: Would you also bring any money to cover any hospitality fee, do you remember what the hospitality fee was?
A: What is hospitality fee?
Q: Do you recall what the hospitality fee was?
A: I don't recall that happening.
Q: So with respect to what you recall from the Pink Monkey, you would come to the Pink Money with cash so that you had enough money to pay for the house fee and for any DJ/house mom fee?
A: Yes.

(Dep. of Anna Lapina, Ex. F to Answer to Pl.'s Statement of Add'l Facts (“Lapina Dep. in Reply”) [96-6] 129:21-31:13.)[6] Labriola also testified (at least with respect to one night) that she paid the fees before her shift. (Dep. of Michelle Labriola, Ex. B to DSOF (“Labriola Dep.”) [78-2] 119:1-7.)[7] Defendants contend that paying the fees before their shifts, as opposed to after, is inconsistent with Plaintiffs' claim that the fees were “seized” from that night's tips.

         The parties also dispute whether all the time that dancers spent at the Club, including preparing to dance before their shifts, counted toward the dancers' work time under the FLSA. Lapina testified that some dancers would arrive early to get ready to perform (e.g., change clothes and apply makeup) at the Club, but she acknowledged that doing so was not a requirement; dancers could get ready before arriving at the Club if they wished. (Dep. of Anna Lapina, Ex. A to DSOF (“Lapina Dep.”) [78-1] 101:18-03:5.) Labriola initially stated that she was “required” to get to work fifteen minutes ahead of her scheduled start time to get ready for work (First Labriola Decl. ¶ 10), but she later acknowledged that she sometimes applied her makeup at home. (Labriola Dep. 67:14-68:7.) Dancers did not “check in”-that is, report to the House Mom and the DJ that they were ready to begin dancing-until they had changed clothes and applied makeup. (See Martinez Dep. 48:23-49:7, 114:15-21.) House Mom Veronica Martinez estimated that it generally took dancers ten to fifteen minutes to get ready if they were not ready to perform when they arrived. (Id. at 14:2-21.)

         Dancers did not leave the Club at precisely the time it closed. They would first “check out, ” and receive their portion of the dance fees. (See Pl.'s Resp. to DSOF ¶ 63, Answer to Pl.'s Statement of Add'l Facts (“Def.'s Resp. to PSOAF”) [96] ¶¶ 78-79.)[8] Labriola testified that the dancers would check out beginning at the Club's 4:00 AM closing time (the Club closed at 2:00 AM on Sunday nights). (Labriola Dep. 76:7-10; see Martinez Dep. 13:5-17.) Martinez testified that dancers checked out with James Marchese, the Club manager, one by one beginning at 4:00 AM (Martinez Dep. 32:5-16; see Aff. of James Marchese (“Marchese Aff.”) [80] ¶ 1), a process that Marchese estimated as consuming “probably . . . less than 30 seconds[.]” (Dep. of James Marchese, Ex. 4 to DSOF (“Marchese Dep.”) [78-4] 58:6-16.)

         B. Plaintiffs' Earnings and Hours Worked

         The parties dispute the number of hours worked and fees earned by each Plaintiff during certain weeks of their employment. Though Labriola and Lapina worked for seven weeks and four weeks, respectively, the parties contest these figures for only one week for Labriola and two weeks for Lapina. For Plaintiff Labriola, the parties dispute the hours she worked during the week of February 2, 2015. For Plaintiff Lapina, the parties dispute the hours worked and amounts earned for the week of August 3, 2015, and the amounts earned for the week of August 10, 2015. Defendant contends that Labriola worked 14 hours during the week of February 2, 2015, and earned $113, and that Lapina worked a total of 37.25 hours, earning $407, during the weeks of August 3 and August 10 combined. Defendant's position is supported by documentary sources, primarily records prepared by Tiffany Kalicki, the Club's Administrator, who is responsible for handling the Club's accounts, expenses, and payroll. (Kalicki Aff. ¶¶ 1, 10.) Kalicki prepared activity logs that calculated dancers' hours, using a start time based on how much the dancer paid for a house fee, and assuming that the dancer worked until the Club closed. (Kalicki Aff. ¶ 10.)

         This original activity log, however, is not in the record; the court knows about it only because Kalicki described it. (Kalicki Aff. ¶ 10.) Instead, without providing specifics about its creation, Defendant has provided what it contends is a more accurate Activity Log/Summary Chart;[9] the start times are more accurate, Defendant claims, because they are taken from the “House Mom Daily Log, ” which lists the time that each dancer checked in with the House Mom as ready to begin dancing. (Kalicki Aff. ¶ 12; Ex. B to Kalicki Aff. [79-2]; Ex. C to Kalicki Aff. [79- 3].) The updated Summary Charts generally assume that dancers worked until the Club closed, unless the Club has evidence of a dancer's earlier end time for a specific day. (Ex. H to Kalicki Aff. (“Lapina Summary Chart”) [79-8]; Ex. I to Kalicki Aff. (“Labriola Summary Chart”) [79-9].)

         1. Labriola: Week of February 2, 2015

         For the week in question, it is undisputed that Labriola worked on just two days: February 2 and February 3. (Ex. 6 to PSOAF [92-5]; Labriola Summary Chart.) During that week, she earned $113 after paying the various fees. (Id.) The parties dispute how many hours she worked, however. Defendant claims that Labriola worked 14 hours that week, as described in the Summary Chart:

Start Time

End Time

2/2/2015 7:15 PM

2/3/2015 1:51 AM

2/3/2015 7:35 PM

2/4/2015 2:52 AM

         (Labriola Summary Chart.)

         Defendant contends that Labriola stopped at these times, before the Club's ordinary closing time, because the Club closed early on those days due to snow-Defendant contends, and Plaintiffs do not dispute, that it had snowed heavily on February 1, 2015.[10] Defendant points to the time card for the “Door Girl, ” the Club employee who “checked [dancers] out” at the end of the night;[11] the Door Girl herself left the Club at 1:51 AM on February 3 and 2:52 AM on February 4. (Ex. E to Kalicki Aff. [79-5]; Kalicki Aff. ¶ 13). Tiffany Kalicki, the Club's administrator, stated that the Door Girl “would have left around the same time as, or after, Labriola” (Kalicki Aff. ¶ 13)-presumably the Door Girl could not have checked Labriola out once she herself had left.

         Labriola claims that she worked 18 hours over these two days, 9 hours each day. It appears that Labriola does not dispute the start times listed above, but instead asserts that she worked until after the Club's regular 4:00 AM closing time on each of the two days. (Second Labriola Decl., Ex. 4 to PSOAF [92-3] (“Second Labriola Decl.”) ¶¶ 40-44.) In support, Labriola first cites a page from Marchese's deposition transcript that is not in the record. (Pl.'s Resp. to DSOF ¶ 45 (citing Marchese Dep. 104).) Labriola cites also to her own declaration (Pl.'s Resp. to DSOF ¶ 45), where she claimed: “According to Pink Monkey's business records, and my own chart of compensation, I worked 18 hours during [the week of February 2, 2015].” (Second Labriola Decl. ¶ 39.) Both Labriola and Lapina submitted “charts of compensation, ” apparently created for this litigation and setting forth their contentions concerning hours worked and amounts earned for the disputed weeks; Labriola's chart states that she worked 9 hours each day. (Ex. 6 to PSOAF.) Neither chart lists the dancers' start or end times, however, and more importantly, Plaintiffs do not explain what sources they used to create these charts.

         2. End of ...

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