COLOSIMO v. FLAGSHIP RESORT DEVELOPMENT, LLC. et al

Filing 25

OPINION. Signed by Judge Joseph H. Rodriguez on 3/25/2019. (rtm, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CRISTINA COLOSIMO, individually
and on behalf of herself and all others
similarly situated,
Plaintiff(s),

:

Hon. Joseph H. Rodriguez

:

Civil Action No. 17-3969

:

v.

OPINION

:

FLAGSHIP RESORT DEVELOPMENT :
CORPORATION,
:
Defendant.
This matter is before the Court on Plaintiff’s Motion for Conditional
Class Certification. Having considered the parties’ submissions, the Court
decides this matter without oral argument pursuant to Federal Rule of Civil
Procedure 78(b). For the reasons stated below, this Court grants Plaintiff’s
motion.
Background
Plaintiff initiated this proposed collective action pursuant to the Fair
Labor Standards Act (“FLSA”) on behalf of nonexempt employees of the
Defendant who were misclassified as contractors and not paid overtime for
work in excess of 40 hours in a work week. Plaintiff alleges Defendant failed
to pay overtime compensation in violation of the FLSA and the New Jersey
Wage and Hour Law.

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Plaintiff was employed as a salesperson by Defendant, which is in the
business of marketing and selling timeshare units in Atlantic City and
neighboring communities. Plaintiff sold deeded timeshares, travel club
programs, trial memberships, vacation clubs and/or upgrades to existing
memberships. Defendant required Plaintiff to execute an Independent
Contractor – Sales Agent Agreement, classifying Plaintiff as an independent
contractor rather than an employee. Plaintiff alleges that she regularly
worked more than 40 hours per week but was paid for only 40 hours of
work during each week; she also states that she was compensated on a
commission basis.
On April 5, 2018, Plaintiff filed a Motion for Conditional Collective
Action Certification with respect to the FLSA claim for all current and
former employees of Defendants who were engaged in the sale of time
shares or other products and services at any of Defendants’ locations at any
time during the three-year period prior to the date the Complaint in this
action was filed. 1 In addition, Plaintiff seeks from Defendant the names,
addresses, and phone numbers of all potential members of the class and

This three-year time limit comports with the statute of limitations for the
FLSA, which is three years for willful violations and two years for nonwillful violations. See 29 U.S.C. § 255(a).

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for leave to send notice to potential class members. Specifically, Plaintiff
seeks conditional certification of this action under 29 U.S.C. § 216(b) and
notice to the following similarly situated employees:
Any and all employees engaged in the sale of timeshares or
other products and services that (i) are/were not paid overtime
compensation at a rate not less than one and one-half times
their regular rate for each hour worked beyond forty (40) hours
during a work week; and (ii) choose to opt-in to this action.
Discussion
Section 216(b) the FLSA provides that an employee may bring a suit
regarding minimum-wage, maximum-hour, and overtime violations against
the employer individually, or, collectively on behalf of other “similarly
situated” employees. Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 69
(2013). Those employees must affirmatively opt in to a collective action by
filing written consent with the court if they wish to become parties to a
collective action. Id.
Courts in the Third Circuit apply a two-step certification process
to FLSA collective actions. Halle v. W. Penn Allegheny Health Sys. Inc.,
842 F.3d 215, 224 (3d Cir. 2016). The first step, conditional certification,
requires only a “modest factual showing” that there is a “factual nexus
between the manner in which the employer’s alleged policy affected [the
named plaintiff] and the manner in which it affected the proposed

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collective action members.” Id. The second step, final certification, is where
the court “makes a conclusive determination as to whether each plaintiff
who has opted in to the collective action is in fact similarly situated to the
named plaintiff.” Adami v. Cardo Windows, Inc., 299 F.R.D. 68, 78 (D.N.J.
2014) (internal quotation marks omitted). “The ‘sole consequence’
of conditional certification is the dissemination of court-approved notice to
potential collective action members.” Id. “At the second stage, with the
benefit of discovery, ‘a court following this approach then makes a
conclusive determination as to whether each plaintiff who has opted in to
the collective action is in fact similarly situated to the named plaintiff.’”
Camsei v. University of Pittsburgh Medical Center, 729 F.3d 239, 243 (3d
Cir. 2013) (quoting Symczyk v. Genesis Healthcare Corp., 656 F.3d 189,
193 (3d Cir. 2011), rev’d on other grounds, Genesis Healthcare, 569 U.S.
66).
Courts apply a “fairly lenient standard” in making a preliminary
determination about whether the named plaintiffs have made a “modest
factual showing” that the employees identified in the complaint are
“similarly situated.” Camesi, 729 F.3d at 243 (quoting Zavala v. Wal Mart
Stores, Inc., 691 F.3d 527, 535-36 n.4 (3d Cir. 2012)). Relevant factors
regarding the “similarly situated” analysis include, but are not limited to,

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whether the plaintiffs (1) are employed in the same department, division,
and location; (2) advance similar claims; (3) seek substantially the same
form of relief; and/or (4) have similar salaries and circumstances of
employment. Zavala, 691 F.3d at 536-37. Ultimately, under this “modest
factual showing” standard, “a plaintiff must produce some evidence,
beyond pure speculation, of a factual nexus between the manner in which
the employer’s alleged policy affected him/her and the manner in which it
affected other employees.” Zavala, 691 F.3d at 536 n.4 (quoting Symczyk,
656 F.3d at 193) (additional citation and quotation marks omitted). The
Third Circuit has noted that “[b]eing similarly situated does not mean
simply sharing a common status, like being an illegal immigrant. Rather, it
means that one is subjected to some common employer practice that, if
proved, would help demonstrate a violation of the FLSA.” Zavala, 691 F.3d
at 538.
In this case, Plaintiff contends that all employees of Defendant who
were engaged in the sale of time shares or other products and services are
similarly situated under the FLSA as they are all nonexempt employees
subject to similar working conditions who performed their services
exclusively on Defendant’s property and were compensated by a
combination of salary and/or commission.

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Plaintiff was employed by Defendant from December 2015 through
June 2016. She was required to adhere to the schedule determined by
management, which regularly had her working in excess of 40 hours per
week. Plaintiff estimates that at any given time, there were 20-30 sales
people similarly employed by Defendant, with a high rate of turnover. All of
these employees were subject to Defendant’s policy of not compensating for
overtime.
Having considered Plaintiff’s Certification, the Court finds that she
has made the modest factual showing required for a determination that the
putative collective members are similarly situated. The Court therefore will
grant Plaintiff’s motion for conditional certification.
Upon conditional certification of a collective action, a court has
discretion to provide court-facilitated notice. See Hoffmann-La Roche Inc.
v. Sperling, 493 U.S. 165, 170 (1989). Such notice ensures that the
employees receive “accurate and timely notice concerning the pendency of
the collective action, so that they can make informed decisions about
whether the participate.” Id. The notice also “serves the legitimate goal of
avoiding a multiplicity of duplicative suits and setting cut off dates to
expedite the disposition of the action.” Id. at 172.

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Plaintiff’s proposed notice includes a description of the lawsuit, an
explanation of who is eligible to receive the notice, the right of the putative
class members to participate, the effect of opting-in or choosing not to, and
instructions on how to opt-in. The Court will approve Plaintiff’s
proposed notice.
Plaintiff also seeks from Defendant the names, addresses, and phone
numbers of prospective class members to facilitate effective dissemination
of the notice. It is appropriate for a district court to permit discovery of the
names and addresses of employees within the class description. See
Hoffmann-La Roche Inc., 493 U.S. at 170. Therefore, the Court will grant
Plaintiff’s request for names, addresses, and phone numbers of potential
class members.
Conclusion
For the reasons stated above, Plaintiff’s Motion for Conditional
Certification will be granted. The Court will issue an appropriate Order.

Dated: March 25, 2019

s/ Joseph H. Rodriguez
JOSEPH H. RODRIGUEZ
U.S.D.J

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