IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

STEPHANIE DE ANGELIS, : 

 : 

 Plaintiff, : 

 : Case No. 2:17-cv-924 

 v. : 

 : CHIEF JUDGE ALGENON L. MARBLEY 

NATIONAL ENTERTAINMENT GROUP, : 

LLC, : Magistrate Judge Deavers 

 : 

 Defendant. : 

OPINION AND ORDER 

 This matter is before the Court on Plaintiff Stephanie De Angelis’ Motion for Conditional 

Class Certification, Expedited Discovery, and Issuance of Notice (ECF No. 44). For the reasons 

stated below, Plaintiff’s Motion is GRANTED. 

I. BACKGROUND 

National Entertainment Group LLC (“Vanity”) is an adult entertainment club in Columbus, 

Ohio. (ECF No. 1 at 2). Ms. De Angelis worked at Vanity as a dancer from April 2016 to February 

2017. (Id. at 5; ECF No. 39). Ms. De Angelis alleges that Vanity did not pay its dancers any wages 

by misclassifying all of its dancers as independent contractors, rather than employees. Id. She 

further alleges that at the end of each night, Vanity took a cut from all tips made by the dancers, 

and the dancers were required to split their tips with other employees. Id. at 3, 6. 

 Ms. De Angelis filed this lawsuit as a collective and class action against Vanity on October 

23, 2017, alleging violations of the Fair Labor Standards Act of 1983 (“FLSA”), 29 U.S.C. §§ 201, 

et seq., the Ohio Minimum Fair Wage Standards Act (“OMFSWA”), O.R.C. §§ 4111.01, et seq., 

and the Ohio Semi-Monthly Payment Act, O.R.C. § 4113.15, as well as common law unjust 

enrichment by failing to pay dancers minimum wage for all hours worked, including failure to pay 
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overtime. (ECF No. 1). On January 2, 2018, Vanity answered the Complaint and brought 

counterclaims against Ms. De Angelis for breach of contract and unjust enrichment. (ECF No. 7). 

The same day, Vanity filed a Motion to Dismiss for Lack of Jurisdiction, arguing that Ms. De 

Angelis never danced at Vanity, and therefore does not have standing to bring the instant lawsuit. 

(ECF No. 6). On August 10, 2018, this Court held an evidentiary hearing to determine for purposes 

of standing whether Ms. De Angelis danced at Vanity. (See ECF No. 33). On September 11, 2018, 

this Court issued an order denying Vanity’s Motion to Dismiss for Lack of Jurisdiction and 

determining that Ms. De Angelis did work at Vanity. (ECF No. 39). 

 Plaintiff thereafter filed a motion for conditional class certification also requesting 

expedited discovery and issuance of notices to prospective class members. (ECF No. 44). Vanity 

opposes Plaintiff’s motion arguing: (1) that Plaintiff has failed to submit adequate evidence in 

support of her motion and that the affidavit she has submitted is conclusory boilerplate; (2) that 

Plaintiff’s testimony at the hearing contradicts her affidavit; and (3) Plaintiff is not similarly 

situated to members of the proposed class because she did not sign any agreements with Vanity 

and “actual Vanity dancers” are required to sign agreements that contain an arbitration clause. 

(ECF No. 45). 

II. STANDARD OF REVIEW 

 The Fair Labor Standards Act requires employers to pay their employees “at a rate not less 

than one and one-half times the regular rate” for work exceeding forty hours per week. 29 U.S.C. 

§ 207(a)(1). Congress’s primary purpose in enacting the FLSA “was to aid the unprotected, 

unorganized and lowest paid of the nation’s working population; that is, those employees who 

lacked sufficient bargaining power to secure for themselves a minimum subsistence wage.” Moran 

v. Al Basit LLC, 788 F.3d 201, 204 (6th Cir. 2015) (quoting Brooklyn Sav. Bank v. O’Neil, 324 
3 

U.S. 697, 707 n.18 (1945)). The FLSA “was enacted by Congress to be a broadly remedial and 

humanitarian statute,” Dunlop v. Carriage Carpet Co., 548 F.2d 139, 143 (6th Cir. 1977), and in 

interpreting the FLSA the Supreme Court has long noted that the statute attempted to mitigate the 

effects of the “unequal bargaining power . . . between employer and employee,” Brooklyn Sav. 

Bank, 324 U.S. at 706. Due to the “remedial nature of this statute,” the employee’s burden “of 

proving that he performed work for which he was not properly compensated” should not be made 

“an impossible hurdle for the employee.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 

686-87 (1946), superseded by statute on other grounds as recognized in Integrity Staffing 

Solutions, Inc. v. Busk, 135 S. Ct. 513, 516-17 (2014).

 The FLSA provides that a court may certify a collective action brought “by any one or 

more employees for and in behalf of himself or themselves and other employees similarly 

situated.” 29 U.S.C. § 216(b). Similarly situated employees are permitted to “opt into” the 

collective action. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006). The lead 

plaintiffs bear the burden to show that the proposed class members are similarly situated to the 

lead plaintiff. O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 584 (6th Cir. 2009), abrogated 

on other grounds by Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016). The FLSA does 

not define “similarly situated” and neither has the Sixth Circuit. Id. But notably, plaintiffs seeking 

to certify a collective action under the FLSA face a lower burden than plaintiffs seeking class 

certification under Federal Rule of Civil Procedure 23. Id. In FLSA class actions, “class 

certification typically occurs in two stages: conditional and final certification.” Frye v. Baptist 

Mem’l Hosp., Inc., 495 F. App’x 669, 671 (6th Cir. 2012) (unpublished). 

 At the conditional-certification stage, conducted at the beginning of the discovery process, 

named plaintiffs need only make a “modest factual showing” that they are similarly situated to 
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proposed class members. Waggoner v. U.S. Bancorp, 110 F. Supp. 3d 759, 764 (N.D. Ohio 2015) 

(quoting Comer, 454 F.3d at 547). The standard at the first step is “fairly lenient . . . and typically 

results in ‘conditional certification’ of a representative class.” Comer, 454 F.3d at 547 (internal 

citations ommitted). Courts generally consider factors such as “employment settings, individual 

defenses, and the fairness and procedural impact of certification.” Frye, 495 F. App’x at 672 (citing 

O’Brien, 575 F.3d at 584). Plaintiffs are similarly situated “when they suffer from a single, FLSAviolating policy, and when proof of that policy or of conduct in conformity with that policy proves 

a violation as to all the plaintiffs.” O’Brien, 575 F.3d at 585. Showing a “unified policy” of 

violations is not required. Id. at 584. The named plaintiff “need only show that [her] position is 

similar, not identical, to the positions held by the putative class members.” Lewis v. Huntington 

Nat’l Bank, 789 F. Supp. 2d 863, 867-68 (S.D. Ohio 2011); see also Comer, 454 F.3d at 546-57. 

 At this stage, a court “does not generally consider the merits of the claims, resolve factual 

disputes, or evaluate credibility.” Waggoner, 110 F. Supp. 3d at 765 (citing Swigart v. Fifth Third 

Bank, 276 F.R.D. 210, 214 (S.D. Ohio 2011)). In determining conditional certification, courts have 

considered “whether potential plaintiffs were identified; whether affidavits of potential plaintiffs 

were submitted; and whether evidence of a widespread . . . plan was submitted.” Castillo v. 

Morales, Inc., 302 F.R.D. 480, 486 (S.D. Ohio 2014) (quoting H & R Block, Ltd. v. Housden, 186 

F.R.D. 399, 400 (E.D. Tex. 1999)). If conditional certification is granted, “plaintiffs are permitted 

to solicit opt-in notices, under court supervision, from current and former employees.” Cornell v. 

World Wide Bus. Servs. Corp., No. 2:14-CV-27, 2015 WL 6662919, at *1 (S.D. Ohio Nov. 2, 

2015). 

 At the final certification stage, conducted after the conclusion of discovery, courts 

“examine more closely the question of whether particular members of the class are, in fact, 
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similarly situated.” Comer, 454 F.3d at 547. At this stage, the court has much more information 

on which to base its decision of whether the proposed plaintiffs are similarly situated and, “as a 

result, it employs a stricter standard.” Id. (alteration, quotation marks, and citation omitted). 

III.ANALYSIS 

A. Conditional Certification 

 Plaintiff seeks to certify a class of: 

“All of Defendant’s current and former dancers who have worked at Defendant’s 

club during the three years before this Complaint was filed up to the present” 

(ECF No. 44 at 15-16). Defendant argues that Plaintiff has failed to submit adequate evidence that 

she is similarly situated to putative class members and that Vanity had a common plan or scheme 

affecting her and other dancers. (ECF No. 45 at 5-7). Typically, the standard of review at the 

conditional certification stage is lenient. Comer, 454 F.3d at 547. Defendant, however, urges this 

court to use a heightened “hybrid” standard requiring Plaintiff to make a “modest plus factual 

showing that there is a group of potentially similarly situated plaintiffs.” (ECF No. 45 at 2-3). 

Defendant claims this heightened standard is warranted because of the August 10, 2018 evidentiary 

hearing and because Plaintiff has “propounded written discovery requests and requests for 

admission.” ECF No. 45 at 2. Defendant does not indicate whether it has responded to those 

requests or issued any of its own discovery requests. 

 The Sixth Circuit has not touched upon the issue of what standard to use for conditional 

class certification motions when limited discovery has been conducted and has only approved of 

a two-stage approach for certifying FLSA collective actions. See e.g., Frye v. Baptist Mem’l Hosp., 

Inc., 495 F. App’x 669, 671-72 (6th Cir. 2012). District courts in this circuit have determined that 

a hybrid standard is appropriate when discovery has taken place on the question of conditional 

certification but disagree as to the extent of the discovery triggering a heightened standard. See
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Waggoner v. U.S. Bancorp, 110 F. Supp. 3d 759, 766 (N.D. Ohio 2015) (determining that 

heightened hybrid standard is only warranted where “substantial discovery on the question of 

conditional certification has already taken place.”); Neff v. U.S. Xpress, Inc., 2:10-CV-948, 2013 

WL 4479078, at *3 (S.D. Ohio Aug. 20, 2013) (determining that “when plaintiffs have had the 

opportunity to conduct at least limited discovery on the certification issue, the plaintiffs are 

required to make a showing beyond their original allegations”) (internal quotation marks omitted). 

Under the hybrid standard, “the court entertains many of the factors usually reserved for the second 

stage, including disparate factual and employment settings and various defenses available to the 

employer, and considers the evidence from both plaintiff and defendant.” Waggoner, 110 F. Supp. 

3d at 766. Additionally, the extent of discovery taken is considered “in conjunction with 

Defendants’ evidence and in the context of Plaintiffs' unshifting burden to prove their claims.” 

Creely v. HCR ManorCare, Inc., 789 F. Supp. 2d 819, 827 (N.D. Ohio 2011). 

 Since substantial discovery relating to the issue of class certification has not been 

conducted, application of the heightened standard is inappropriate. The evidentiary hearing 

conducted on August 10, 2018 was for purposes of jurisdiction—to determine whether Plaintiff 

worked at Vanity—and not related to the issue of class certification. See Waggoner v. U.S. 

Bancorp, 110 F. Supp. 3d 759, 766 (N.D. Ohio 2015) (determining application of heightened 

standard was inappropriate where both parties were not given “considerable time to develop the 

record” on the “similarly situated” issue before the court’s ruling on conditional certification). 

Further, while Defendant claims that Plaintiff has made discovery requests, it does not allege that 

the discovery sought was actually provided, was related to the issue of conditional certification, or 

that it was substantial. Thus, application of a heightened standard is inappropriate. 
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 Even if this Court were to employ a heightened standard, Plaintiff has met the “modestplus” standard. See Hall v. U.S. Cargo and Courier Serv., LLC, 299 F. Supp. 3d 888, 896 (S.D. 

Ohio 2018) (conditionally certifying class of delivery truck drivers alleging they were 

impermissibly classified as contractors under a heightened “modest plus” standard determining 

that plaintiffs had made the requisite factual showing through “declarations stating that they and 

the putative class members’ claims are unified by a common theory—that they have been 

misclassified as independent contractors when they were indeed employees.”). In Hall, plaintiffs 

alleged that they were misclassified as contractors and not employees even though they were 

required to wear a uniform purchased through a specific supplier, comply with Defendant’s 

grooming standards, and received their routes directly from defendant. Here, Plaintiff has 

presented an affidavit detailing her experience as a dancer at Vanity which indicates that she was 

required to sign a document classifying her as an independent contractor, that Vanity maintained 

policies and pay structures that applied to herself and all dancers, that Vanity maintained a dress 

code and etiquette guidelines, and that Vanity determined what services dancers would offer. ECF 

No. 44-2. 

As other courts have observed, where only some discovery has taken place, “arguably an 

incrementally higher standard applies, but it is not so substantially greater as to convert the 

question before the court to one involving a dispositive merits resolution of the issues at hand.” 

Kampfer v. Fifth Third Bank, 3:14 CV 2849, 2016 WL 1110257, at *5 (N.D. Ohio Mar. 22, 2016) 

(internal quotation marks omitted) (citing Stallard v. Fifth Third Bank, 2:12-CV-01092, 2013 WL 

12308493, at *1 (W.D. Pa. Dec. 12, 2013)). All that is required of a court employing the 

intermediate standard is to “weigh the sufficiency of affidavits against any competing evidence 

produced in the targeted discovery period.” Watson v. Adv. Distrib. Services, LLC, 298 F.R.D. 
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558, 562 n.3 (M.D. Tenn. 2014). Defendant claims that Plaintiff’s testimony at the evidentiary 

hearing contradicts her affidavit because Plaintiff could not specifically state what Vanity’s 

policies or practices were and because Plaintiff’s vague testimony supports Defendant’s assertion 

that Ms. De Angelis “never even danced at the club.” ECF No. 45 at 8-11. However, after listening 

to the testimony taken at the evidentiary hearing, this Court has already determined that Ms. De 

Angelis worked at Vanity. Moreover, much of the testimony made during the evidentiary hearing 

supports the contentions made in Ms. De Angelis’s affidavit. The defendant’s own witness in the 

evidentiary hearing, Vanity general manager Kenneth Kopras, stated that all dancers were required 

to sign a dancer agreement, that dancers were paid in tips and required to split those tips, that 

Defendant sets and controls pricing and location of all table dances. (See ECF No. 38 at 65-66, 76-

78). Nonetheless, this Court declines to resolve these factual disputes at this time. All that is 

required at this stage is that Plaintiff make a factual showing that she is similarly situated to 

potential class members. See Hall, 299 F. Supp. 3d at 896 (citing Comer, 454 F.3d at 546-47). 

Defendant argues that this court should refuse to certify a class of dancers for the overtime 

claims because Ms. De Angelis stated during the evidentiary hearing that she never worked more 

than 40 hours a week at Vanity. (ECF No. 45 at 16). A court is entitled to refuse to certify 

conditionally a class of plaintiffs based on overtime claims where the representative plaintiff 

testifies that plaintiff never worked more than 40 hours a week. See Trinidad v. Pret A Manger 

(USA) Ltd., 962 F. Supp. 2d 545, 556 (S.D.N.Y. 2013) (denying in part motion to conditionally 

certify class for overtime claims where one of the representative plaintiffs was employed to work 

part time and testified that he never worked more than 40 hours a week). Defendant cites to a part 

of the hearing where Ms. De Angelis stated that she did not work more than 40 hours a week at 

Vanity. (ECF No. 38 at 20-21). At various other times during the hearing, however, Ms. De Angelis 
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stated that there were weeks where she worked five days and more than 40 hours at Vanity. Id. at 

18, 23-24, 27, 28, 42-44. Ms. De Angelis described getting into Vanity around four in the afternoon 

on any given day and spending approximately two hours getting ready to begin dancing. Id. at 19. 

Her dancing shift would begin at six in the evening and end at 11, or if she came in later, she would 

begin at eight and was required to “stay the night and work the shift” ending when the 

establishment closed. Id. at 19-21. Though Ms. De Angelis, in her hearing testimony, did not 

characterize this time as work, her affidavit and the complaint indicate that Vanity had a dress code 

to which required all dancers to adhere and that she often did not enter or exit Vanity wearing her 

outfit. (ECF No. 1 at 5-6; ECF No. 44-2 at 2; ECF No. 38 at 9, 52-54). While there is a factual 

dispute as to how many hours Ms. De Angelis worked, there is not a demonstrable deficiency in 

Plaintiff’s pleadings. Given the fact that the purpose of the evidentiary hearing was to determine 

whether Ms. De Angelis worked at Vanity and not whether she ever worked more than 40 hours a 

week, this court declines to resolve the factual dispute between the parties. After the taking of 

discovery and Ms. De Angelis’ deposition, should there be evidence indicating that Ms. De Angelis 

definitively did not work more than forty hours at Vanity, Defendant may revisit this issue in a 

motion to dismiss the overtime claims or decertify the class. 

 Defendant also argues that Plaintiff is not similarly situated to members of the proposed 

class because she did not sign an agreement with Vanity and many Vanity dancers were required 

to sign an agreement containing an arbitration clause that would foreclose any class or collective 

claims. (ECF No. 45 at 12-14). According to Vanity, if a collective class is certified and some 

Vanity dancers opt in, “they may have signed agreements that require them to arbitrate any dispute 

with Vanity.” Id. at 13. While it is true that an arbitration provision in an employment contract will 
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foreclose the possibility of class or collective action claims,1 Vanity does not allege that all or most 

of its employees will be bound by such a clause—only a “portion.” Id. at 13. Further, Vanity does 

not include a sample arbitration agreement or point to any evidence in the record that would 

support its assertion that Plaintiff is not similarly situated to members of the proposed class for 

this reason. Defendant’s argument is a factual issue better addressed when parties attempt to opt 

in or at the decertification stage. After discovery has been taken, should the existence of signed 

arbitration agreements predominate within the proposed class, Defendant may raise the issue 

again. 

Plaintiff has brought forward sufficient evidence that she is similarly situated to other 

dancers at Vanity and that she and other dancers were subjected to a single, FLSA-violating policy. 

Accordingly, this Court GRANTS Plaintiff’s motion and conditional certifies a class of: 

All of Defendant’s current and former dancers who have worked at Defendant’s 

club during the three years before this order was granted to the present. 

The parties are ORDERED to proceed with expedited discovery. 

B. Notice 

Defendant takes issue with Plaintiff’s opt-in form and the process for providing 

notification. (ECF No. 45 at 16). Defendant argues that much of the notice period is outside the 

statutory limitations period. Id. A lawsuit to recover unpaid compensation pursuant to the FLSA 

must “be commenced within two years after the cause of action accrued,” unless the plaintiff 

demonstrates the cause of action arose “out of a willful violation,” in which case the statute of 

limitations is three years. 29 U.S.C. § 255(a). An FLSA violation is “willful” if the employer either 

knew or showed reckless disregard that its conduct was prohibited by the Act. Dole v. Elliott Travel 

& Tours, Inc., 942 F.2d 962, 966–97 (6th Cir. 1991) (citing McLaughlin v. Richland Shoe Co., 486 

 

1 See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018) 
11 

U.S. 128, 133 (1988)). All that is required is that Plaintiff allege that Defendant’s violation was a 

willful one. Stout v. Remetronix, Inc., 3:13-CV-026, 2013 WL 4048241, at *5 (S.D. Ohio Aug. 9, 

2013). Plaintiff has alleged that Defendant willfully violated the FLSA by misclassifying its 

dancers as independent contractors. (ECF No. 1 at 8). Although Plaintiff asks the Court to certify 

the class from the time of the three years preceding the filing of the complaint, collective-action 

certification is appropriately limited to the three years prior to the date of approval of the notice, 

not the filing of the lawsuit. See, e.g., Crescenzo v. O-Tex Pumping, LLC, 15-CV-2851, 2016 WL 

3277226, at *5 (S.D. Ohio June 15, 2016); Atkinson v. Teletech Holdings, Inc., No. 3:14–cv–254, 

2015 WL 853234, at *3 (S.D. Ohio Feb. 26, 2015). 

The Court ORDERS the parties to confer as to the proper form of the notice and submit a 

proposed notice form and opt-in consent form within fourteen (14) days of the date of this order. 

If the parties disagree as to any specific language in the notice and opt-in consent form, the parties 

may note the disputed language, with accompanying briefing as necessary, and the Court will 

promptly determine which language to use. At the same time, the parties shall also submit a 

proposed plan for the distribution of the notice to all potential opt-in plaintiffs employed by 

Defendant at any time from three years prior to the granting of this motion to the present. In the 

event of a disagreement on the distribution procedure, the parties shall submit simultaneous 

briefing on the matter. No responsive briefing will be permitted. 
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IV.CONCLUSION 

 For the reasons set forth above, Ms. De Angelis’ Motion for Conditional Certification and 

Expedite Discovery is GRANTED. The parties are ORDERED to confer and submit to this Court 

within fourteen (14) days a proposed notice and plan for distribution of notice. 

 IT IS SO ORDERED.

 s/Algenon L. Marbley 

 ALGENON L. MARBLEY 

 Chief United States District Court Judge 

DATED: December 10, 2019