United States District Court, D. Nevada
DARLENE LEWIS, on behalf of herself and all others similarly situated, Plaintiff,
NEVADA PROPERTY 1, LLC, d/b/a the Cosmopolitan of Las Vegas; and DOES 1 through 50, inclusive, Defendant.
GEORGE FOLEY, Jr., Magistrate Judge.
This matter is before the Court on Plaintiff's Renewed Motion for Circulation of Notice Pursuant to 29 U.S.C. § 216(b) Re: Bank Class (#76), filed on January 24, 2014. Defendant filed its Opposition to Plaintiff's Renewed Motion (#91) on February 24, 2014. Plaintiff filed her Reply (#94) on February 27, 2014. The Court conducted a hearing in this matter on March 3, 2014.
Plaintiff Darlene Lewis's First Amended Collective and Class Action Complaint (#6) ("Complaint"), filed on September 24, 2012, alleges that Defendant failed to pay wages to Plaintiff and other similarly situated hourly paid, nonexempt employees for certain employer mandated "offthe-clock" activities. The Complaint alleges that three classes of Defendant's employees should be certified for purposes of the FLSA collective action and the Rule 23 class action. The first class, identified as the "Uniform Class, " consists of employees who were allegedly required to change into their work uniforms on Defendant's premises before clocking-in and to change out of their uniforms and turn them in to the employer after clocking-out of the employee timekeeping system. The second class, identified as the "Satellite Bank Class, " consists of employees who use company money in the performance of their job duties and who were or are required to obtain the money from the Cosmopolitan's cashier or from an electronic banking system before clocking-in and to account for and return the funds after clocking-out. The third class, identified as the "Overtime Rate Calculation Class, " consists of Defendant's hourly wage employees who were paid a lunch stipend which was not included in their regular rate of pay and therefore was not included in the calculation of overtime pay.
Plaintiff filed a motion for circulation of notice on October 17, 2012 requesting conditional certification of the three classes and that notice of the lawsuit be sent to the class members to afford them the opportunity to "opt-in" to the collective action in accordance 29 U.S.C. §216(b). Motion (#11). On January 22, 2013, the Court conditionally certified the Uniform Class and authorized the sending of notice of this action to all of Defendant's present or former employees who were or are required to wear uniforms. Order (#30), pg. 22. The Court also conditionally certified the Satellite Bank Class, but limited it to employees who worked in the Slot Operations Department and Pizzeria. Id. According to Defendant, 903 individuals have opted-in to the Uniform Class. Nineteen individuals have opted-in to the Satellite Bank Class. Eighteen of these individuals were employed in the Slot Operations Department and one employee worked as a cashier in the Pizzeria. Defendant's Opposition (#91), pg. 2; Exhibit 1, Navarro Declaration, ¶¶ 4, 6, 7.
In her Renewed Motion for Circulation of Notice (#76), Plaintiff requests that the Court expand the conditional certification of the Satellite Bank Class to all of Defendant's hourly paid, nonexempt employees who were/are required to obtain funds from the cashier or electronic banking system to perform their job duties. Plaintiff argues that there is new evidence showing that employees in other departments of the Cosmopolitan were also required to obtain their cash banks before clocking-in and to return them after clocking-out. Before addressing this new evidence and the arguments made by the parties, the Court first summarizes the basis for its January 13, 2013 order which limited the Satellite Bank Class to employees in the Slot Operations Department and the Pizzeria.
Plaintiff Darlene Lewis submitted a declaration in support of her initial motion for circulation of notice stating that she was employed by the Cosmopolitan as a guest services representative from November 10, 2010 until May 7, 2012. Ms. Lewis testified that as a guest services representative, she carried a cash bank which she was required to obtain from the cashier at the CoCage prior to clocking-in to the employee timekeeping system. She was also required to turn in her cash bank after clocking-out at the end of her shift. Lewis Declaration (#11-3), ¶¶ 7-10. Ms. Lewis was employed in the Slot Operations Department.
Plaintiff also submitted a declaration of Brianne Adame who stated that she was employed as a cashier in the Cosmopolitan Pizzeria from the end of January 2011 until August 2011. Ms. Adame stated that she was required to obtain her cash bank from the cashier at the CoCage. She further stated that she was instructed by her manager that it was Cosmopolitan policy to have all employees who handle a cash bank to do so before they clock-in and after they clock-out of the timekeeping system. Ms. Adame stated that she refused to follow this policy because she felt she should be compensated for the time expended in obtaining and returning her cash bank. She stated that she was reprimanded by her manager for not complying with the policy. Adame Declaration (#11-4), ¶ 7.
Defendant submitted a declaration by Daniel Espino, "Vice-President of People" (Human Resources) denying that Defendant has at anytime had a companywide policy that required employees to obtain their funds from the cashier or electronic banking system prior to clocking-in and to return the funds after clocking-out. Opposition (#20), Exhibit 1, Espino Declaration. Defendant asserted that the procedures in the Slot Operations Department relating to employee cash banks were unique to that department. Only employees in the Slot Operations Department obtain their cash bank from cashiers at the CoCage. All other employees who carry cash do their banking at the Banking Electronic System ("BES") which is a fully automated system. Defendant also produced a copy of a written Slot Department policy, with a revised date of July 9, 2012, stating that all personnel who require keys, radios or pouch funds must obtain them after clocking-in and must not clock-out until after they turn in their pouch, radio and keys. Plaintiff, however, produced a written Slot Department policy dated December 5, 2010 which required employees to obtain their keys, radios and pouch funds before clocking-in and to turn in their keys, radios and pouch funds after clocking-out. Plaintiff's counsel has also asserted that Defendant changed its clock-in and clock-out policies in July-August 2012 after it became aware that Plaintiff's counsel was pursuing similar claims against other employers.
Defendant also submitted a declaration from its Director of Labor Analysis, Michael Berry, who stated that the Cosmopolitan has employees in approximately 20 different classifications spread across approximately 34 different departments who have cash bank duties. Opposition (#20), Exhibit 7, Berry Declaration. Mr. Berry stated that only the employees in the Slot Operations Department obtain their cash bank from cashiers at the CoCage. Employees in all other departments, including the Pizzeria, obtain their cash funds through the BES. Mr. Berry also stated that there never has been any companywide policy that required employees to perform their banking activities off the clock. He stated that the Food & Beverage Department, which includes the Pizzeria, has written "Standard Operating Procedures" ("SOP's") that require employees to obtain their cash banks after clocking-in and to return their cash banks before clocking-out.
Defendant submitted a Food & Beverage SOP regarding "Banking Electronic System, " dated January 1, 2010, which stated that employees "must clock-in before attaining house issued bank, " and clock-out only after the employee has dropped his/her house issued bank into the revenue drop slot. Id., Exhibit 9. Defendant also submitted a Food & Beverage SOP with a revised date of August 3, 2012 which had the same requirement. Id., Exhibit 10. Plaintiff disputes the validity of the January 1, 2010 SOP because the purported date of the document was many months before the Cosmopolitan opened for business. Plaintiff also asserts that the SOP with the revised date of August 3, 2012, is consistent with Defendant's change of its clock-in/clock-out policies at or about that time.
Pursuant to the lenient standard that applies to the conditional certification of an FLSA collection action class at the beginning of a case, see Order (#30), pg. 10, the Court found that Ms. Lewis's declaration, combined with the Slot Operations Department policy that was in effect prior to July 9, 2012, supported conditional certification of the Satellite Bank Class with respect to employees in that department. Although evidence of such a policy was less persuasive with respect to the Pizzeria, the Court found that Ms. Adame's statement that she was informed of the policy by her manager and was reprimanded for not following it, was sufficient to support conditional certification for employees who worked in the Pizzeria as well. The Court concluded, however, that Plaintiff had not made a sufficient showing for conditional certification of the Satellite Bank Class with respect to Defendant's other departments or areas of operation.
On July 22, 2013, the Court approved the parties' Updated Stipulated Discovery Plan and Scheduling Order (#37) which stated that "[d]iscovery will be needed on all matters set forth in the Complaint and the defenses asserted by Defendant thereto." Scheduling Order, pg. 3. The discovery plan proposed two phases of discovery and further stated: "Phase 1: The parties will engage in discovery related to the determination of what, if any, is the proper scope of Rule 23 proposed class and/or sub-classes identified in Plaintiff's [Complaint] and the similarly situated requirements under the FLSA." Id., pg. 4. The parties requested 180 days to complete Phase 1 discovery.
Defendant states that during Phase 1 discovery, it noticed the depositions of 34 opt-in plaintiffs, of which 16 were completed. Defendant also propounded requests for production of documents to Plaintiff. In addition, Defendant states that it identified 12 company witnesses who have knowledge relevant to Plaintiff's claims, produced 331 pages of documents and provided a list of 7, 231 current and former employees, as well as copies of timekeeping (punch-in and punch-out) data. Defendant also identified as relevant, additional documents that were disclosed in a related state court action. Defendant's Opposition to Plaintiff's Renewed Motion ...