Rossello et al v. Avon Products, Inc.

Filing 52

REPORT AND RECOMMENDATION re 13 Motion to Certify; ORDER denying 36 Motion to Strike. Objections to R&R due by 7/8/2015. Signed by US Magistrate Judge Bruce J. McGiverin on June 24, 2015. (SME)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
HELEN ROSSELLÓ, et al.,
Plaintiffs,
v.

Civil No. 14-1815 (JAG/BJM)

AVON PRODUCTS, INC.,
Defendant.
REPORT AND RECOMMENDATION
Plaintiffs Helen Rosselló, María Villeneuve, and Wanda Vázquez bring this putative
collective action against Avon Products, Inc. (“Avon”) under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq., and Puerto Rico Law No. 379 of May 15, 1948 (“Law
379”), 29 L.P.R.A. § 271 et seq. Compl., Docket No. 1. Plaintiffs allege that Avon, their
current or former employer, misclassified them, and others similarly situated, as employees
exempt from the protections afforded by the FLSA and Law 379 and, as a result, failed to
provide overtime pay or a meal period. Id. Plaintiffs moved for conditional class
certification. Docket No. 13 (“Mot.”). Avon opposed, plaintiffs replied, and Avon surreplied.
Docket Nos. 24 (“Opp.”), 31 (“Reply”), 34. The motion was referred to me for a report and
recommendation. Docket No. 18. Also before me is Avon’s motion to strike the declarations
supporting plaintiffs’ conditional certification motion. Docket No. 36. Plaintiffs opposed the
motion to strike, and Avon replied. Docket Nos. 40, 45. For the reasons below, I deny
Avon’s motion to strike and recommend that plaintiffs’ motion for conditional certification
be granted in part.
BACKGROUND
Avon is a New York corporation engaged in the sale and distribution of beauty
products. Compl. ¶¶ 5, 7; Echeandía Decl. ¶¶ 4–5, Docket No. 24-1. Its products are sold to
the public by non-employee independent sales representatives (“ISRs”). Echeandía Decl. ¶ 7;
Echenique Dep. 8:23–9:4, Docket No. 31-1. In Puerto Rico, Avon’s operations are divided

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

2

into a number of districts, each managed by a District Sales Manager (“DSM”). Rosselló
currently works in Puerto Rico as a DSM; Villeneuve and Vázquez were employed in the
same capacity until 2012 and 2014, respectively. Rosselló Decl. ¶¶ 1–2, Docket No. 13-2;
Villeneuve Decl. ¶ 1, Docket No. 13-3; Vázquez Decl. ¶¶ 1–3, Docket No. 13-4; Echeandía
Decl. ¶¶ 5–6. DSMs are salaried employees tasked with, among other things, recruiting,
training, and motivating ISRs within their individual districts in order to meet various perdistrict sales and other goals set by Avon for each of 26 two-week “campaigns” throughout
the year. Rosselló Decl. ¶ 4; Villeneuve Decl. ¶ 2; Vázquez Decl. ¶ 5; Reply, Ex. B, Docket
No. 48-1; Echeandía Decl. ¶ 7; Echenique Dep. 11:7–12:11.
Plaintiffs allege that Avon failed to fully compensate them and other DSMs in Puerto
Rico for overtime, which they regularly worked, and also failed to provide a designated meal
period. Compl. ¶¶ 45–46. Avon failed in these respects, plaintiffs claim, because it
improperly classified DSMs as employees exempt from the requirements of the FLSA and
Law 379. Id. ¶¶ 47, 49. Plaintiffs now move for conditional certification of a class
comprising all current and former DSMs who were employed by Avon in Puerto Rico at any
time in the last six years, who were classified as exempt, and who worked more than eight
hours per day or 40 hours per week during their employment. Mot., Ex. 1, Docket No 13-1.1
DISCUSSION
I.

Wage-and-Hour Laws and the Administrative Exemption
A.

The FLSA

Under the FLSA, employers are generally required to pay their employees overtime
wages, at the rate of time-and-a-half, for hours worked in excess of 40 during a single week.
29 U.S.C. § 207(a)(1). Some white-collar employees, including, as relevant here, those who
work in an “administrative capacity,” are exempt from the overtime-pay requirement. Id.
The precise wording employed by plaintiffs is: “All present and former AVON District
Sales Managers from November 6, 2008”—six years before plaintiffs filed their complaint—“to the
present who were classified as exempt employees and worked more than eight (8) hours daily and/or
forty (40) hours weekly.” Mot., Ex. 1. Though plaintiffs’ proposed notice is not explicitly limited to
DSMs who worked in Puerto Rico, I read in such a limitation for reasons explained below.
1

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

3

§ 213(a)(1).2 Consistent with the statute’s remedial purpose, this and other exemptions must
be “narrowly construed against the employers seeking to assert them and their application
limited to those establishments plainly and unmistakably within their terms and spirit.” Reich
v. John Alden Life Ins. Co., 126 F.3d 1, 7 (1st Cir. 1997) (quoting Arnold v. Ben Kanowsky,
Inc., 361 U.S. 388, 392 (1960)).
The FLSA does not itself define the term “administrative,” instead committing to the
Department of Labor (“DOL”) the task of clarifying through regulations the exemption’s
scope. 29 U.S.C. § 213(a)(1); John Alden, 126 F.3d at 7–8. These regulations, which are
“given controlling weight unless found to be arbitrary, capricious, or contrary to the statute,”
Cash v. Cycle Craft Co., 508 F.3d 680, 683 (1st Cir. 2007) (quoting John Alden, 126 F.3d at
8), define “employee employed in a bona fide administrative capacity” to mean any
employee:
(1) Compensated on a salary or fee basis at a rate of not less than $455 per
week . . .;
(2) Whose primary duty is the performance of office or non-manual work
directly related to the management or general business operations of the
employer or the employer’s customers; and
(3) Whose primary duty includes the exercise of discretion and independent
judgment with respect to matters of significance.
29 C.F.R. § 541.200(a). “Primary duty,” in turn, means “the principal, main, major or most
important duty that the employee performs.” Id. § 541.700.
B.

Law 379

Law 379 parallels and supplements the FLSA. Employees are entitled to time-and-ahalf overtime wages for hours not only in excess of 40 per week, but also in excess of eight
per day. 29 L.P.R.A. §§ 271, 273–74.3 Employers also must provide employees with a meal
period, and an employer who requires or permits an employee to work during his meal
2

Avon makes clear that it intends ultimately to rely on the administrative exemption, rather
than any other of the FLSA’s numerous exemptions. Opp. 2. In my analysis of plaintiffs’ conditional
certification motion, I do not consider other defenses that Avon might conceivably assert.
3
The time-and-a-half rate applies to employers operating in an industry covered by the
FLSA; for other employers, a double rate applies. 29 L.P.R.A. § 274.

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

4

period must compensate him at double his regular hourly rate. Id. § 283. As under the FLSA,
administrators are exempt. Id. § 288(1). The parameters of this exemption are identical to
those of its FLSA equivalent. Velázquez Fernandez v. NCE Foods, Inc., 405 F. Supp. 2d 179,
195 (D.P.R. 2005); López Vega v. Francisco Vega Otero, Inc., 3 P.R. Offic. Trans. 243, 245–
48 (P.R. 1974); P.R. Regs., D.T.R.H. Reg. 7082 (2005).
II.

Collective Action Standard
The FLSA permits employees to bring suit against their employer on their own behalf

and on behalf of “other employees similarly situated.” 29 U.S.C. § 216(b). Unlike
conventional class actions under Federal Rule of Civil Procedure 23, in which absent class
members are bound by the judgment unless they affirmatively remove themselves from the
class, FLSA collective actions require potential plaintiffs to affirmatively “opt in.” 29 U.S.C.
§ 216(b) (“No employee shall be a party plaintiff to any such action unless he gives consent
in writing to become a party.”); Prescott v. Prudential Ins. Co., 729 F. Supp. 2d 357, 359
(D. Me. 2010). The statue does not define “similarly situated” or specify how courts are to
determine whether a collective action is appropriate, and neither the Supreme Court nor the
First Circuit has weighed in on the subject. Prescott, 729 F. Supp. 2d at 363. Other circuits
have sanctioned various approaches but stopped short of mandating any particular procedure.
Id. at 363–64 (collecting cases). Absent clear guidance, district courts in this circuit, and the
majority of district courts nationwide, have adopted a “two-tiered” approach. Johnson v.
VCG Holding Corp., 802 F. Supp. 2d 227, 233 & n.5 (D. Me. 2011) (collecting cases).4
At the first stage, the court determines whether plaintiffs have shown that they and
the putative class members “have similar (not identical) job duties and pay provisions . . .
and are victims of a common policy or plan that violated the law.” Perez v. Prime Steak
Law 379 provides that employees may bring suit in their own names and those “of other
employees who are in similar circumstances.” 29 L.P.R.A. § 282. Plaintiffs allege in their complaint
that the standards and procedures for proceeding collectively under Law 379 and the FLSA are
essentially identical, Compl. ¶ 14, and their conditional certification motion apparently presumes the
same. Because Avon makes no suggestion to the contrary, I assume, for present purposes, that the
two statutes are indeed consonant in this respect.
4

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

5

House Rest. Corp., 959 F. Supp. 2d 227, 231 (D.P.R. 2013) (quoting Prescott, 729 F. Supp.
2d at 363–64); see also, e.g., Jenkins v. TJX Cos., 853 F. Supp. 2d 317, 320 (E.D.N.Y. 2012)
(referring to this initial stage as “conditional certification”). The conditional certification
stage occurs “earlier in a case, before substantial discovery,” Prescott, 729 F. Supp. 2d at
364, and the court makes its preliminary determination “under a ‘fairly lenient standard,’”
Perez, 959 F. Supp. 2d at 230 (quoting O’Donnell v. Robert Half Int’l, Inc., 429 F. Supp. 2d
246, 249 (D. Mass. 2006)). Plaintiffs need make only a “modest” or “minimal” factual
showing that there exists a class of similarly situated employees. Johnson, 802 F. Supp. 2d at
234.5 Given this light burden, the court’s analysis “typically results in conditional
certification.” Prescott, 729 F. Supp. 2d at 364 (quoting Hipp, 252 F.3d at 1218) (internal
quotation marks omitted).
If plaintiffs are able to carry their burden, the court authorizes notice of the pending
action to members of the putative class, who may then opt in. Id. at 233–34; see HoffmannLa Roche Inc. v. Sperling, 493 U.S. 165, 169–70 (1989) (holding that courts have discretion
to authorize sending notice to potential class members in an FLSA collective action). The
court may also facilitate notice by allowing or ordering discovery designed to identify
employees within the similarly situated class. Hoffmann-La Roche, 493 U.S. at 170.6
At the close of discovery and following the arrival of opt-in plaintiffs, the defendant
employer may initiate the second stage by moving to “decertify” the collective action. Id.

The court’s inquiry often focuses solely on “the pleadings and any affidavits which have
been submitted.” Prescott, 729 F. Supp. 2d at 364 (quoting Hipp v. Liberty Nat’l Life Ins. Co.,
252 F.3d 1208, 1218 (11th Cir. 2001)). However, courts regularly consider additional evidence, such
as job descriptions, recorded corporate policies, and deposition testimony. See, e.g., Chin v. Tile
Shop, LLC, 2014 U.S. Dist. LEXIS 151960, at *14–16 (D. Minn. Oct. 27, 2014); Jacob v. Duane
Reade, Inc., 2012 WL 260230, at *6 (S.D.N.Y. Jan. 27, 2012); Smallwood v. Ill. Bell Tel. Co., 710 F.
Supp. 2d 746, 752 (N.D. Ill. 2010); Murton v. Measurecomp, LLC, 2008 WL 5725631, at *5 (N.D.
Ohio June 9, 2008).
6
Hoffmann-La Roche addressed the propriety of court-facilitated notice in the context of a
collective action under the Age Discrimination in Employment Act, which expressly incorporates the
FLSA’s collective action provision. 493 U.S. at 167–68; see 29 U.S.C. § 626(b). The Court’s holding
applies with equal force to collective actions under the FSLA proper. Hoffmann v. Sbarro, Inc.,
982 F. Supp. 249, 261 n.15 (S.D.N.Y. 1997) (Sotomayor, J.).
5

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

6

With the benefit of more substantial evidence, the court makes a comparatively searching
“factual determination as to whether there are similarly-situated employees who have opted
in.” Id. (quoting Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 916 n.2 (5th Cir. 2008)).
Factors relevant to that determination include “(1) disparate factual employment settings of
the individual plaintiffs; (2) the various defenses available to each defendant which appear to
be individual to each plaintiff; [and] (3) fairness and procedural considerations.” Thiessen v.
Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001) (quoting Vaszlavik v.
Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)).
III.

Avon’s Motion to Strike
In order to define the constellation of evidence under consideration, it is necessary,

before reaching the merits of plaintiffs’ motion, to address Avon’s objections to plaintiffs’
three unsworn declarations. Avon moves to strike the declarations on three grounds: they are
filled, Avon says, with statements that (1) are impermissibly conclusory, (2) concern matters
not appropriately within the scope of lay testimony, and (3) are not based upon personal
knowledge.7
The parties disagree, as an initial matter, as to the evidentiary standard applicable to
declarations in support of a conditional certification motion. Avon would have the court
import from the summary judgment context the rule that declarations “be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the . . .
declarant is competent to testify on the matters stated,” Fed. R. Civ. P. 56(c)(4), while
plaintiffs urge that a less demanding standard is appropriate.
Avon also argues that Villeneuve’s and Vázquez’s declarations should be disregarded
because they are substantially identical. Although it is true that the two declarations are mostly
boilerplate, plaintiffs “are not required to make a lengthy detailed declaration in their own words or
without the assistance of counsel.” McNelley v. ALDI, Inc., No. 1:09 CV 1868, 2009 WL 7630236, at
*4 (N.D. Ohio Nov. 17, 2009). Moreover, it is in plaintiffs’ interests, given their burden, to present
declarations that describe their duties and other facts more or less identically. See Matthews v. ALC
Partner, Inc., No. 2:08-CV-10636, 2009 WL 2591497, at *5 (E.D. Mich. Aug. 24, 2009) ([T]he
uniformity that ALC derides is in the Court’s view a substantial indicator in favor of the plaintiffs
being similarly situated. . . . [T]he fact that [multiple] plaintiffs can agree on a single formulation as
accurately describing their job duties is a strong indicator that certification is appropriate.”).
7

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

7

Though there is support for both positions, the better-reasoned cases are on plaintiffs’
side. Compare, e.g., Richards v. Computer Scis. Corp., 2004 WL 2211691, at *1 (D. Conn.
Sept. 28, 2004) (applying Rule 56 standard), with, e.g., White v. MPW Indus. Servs., Inc.,
236 F.R.D. 363, 368 (E.D. Tenn. 2006) (rejecting Rule 56 standard). As the court in White
explained, there are two reasons not to impose the relatively stringent summary judgment
standard at this stage. First, blithe adoption of that standard would “fail[] to take into account
that the plaintiff has not yet been afforded an opportunity, through discovery, to test fully the
factual basis for his case.” White, 236 F.R.D. at 368. Second, the standard’s rigor is uniquely
appropriate to declarations offered at summary judgment. In that context, requiring
admissible evidence “is logical: there is a possibility that trial will be avoided by the result,
so courts should decide the motions based on evidence that would be admissible at trial.” Id.
When a court is confronted with a conditional certification motion, in contrast, “[t]here is no
corresponding possibility of final disposition,” and discovery will proceed regardless of the
motion’s resolution. Id. Numerous courts have adopted White’s reasoning or discussed it
with approval. Lee v. Metrocare Servs., 980 F. Supp. 2d 754, 760–61 (N.D. Tex. 2013)
(collecting cases).
Like those courts, I find White’s analysis persuasive and so will not require that
plaintiffs’ evidence be essentially trial-ready. Consequently, Avon’s objections that certain
statements are inadmissible because they set forth legal conclusions, rather than facts, and
because they address matters beyond plaintiffs’ competence, are meritless, and the motion to
strike is denied as to those statements.8 The objections to an asserted lack of personal

8

Which is not to say that the objected-to statements are relevant. See Lee, 980 F. Supp. 2d at
761 n.2 (“[A]t this stage, the objections raised by [defendant] go to the weight of the evidence, and
not its admissibility.”). Plaintiffs variously claim that they were “misclassified,” “erroneously
classified,” and “wrongly classified” by Avon as exempt. Rosselló Decl. ¶¶ 2, 7; Villeneuve Decl.
¶¶ 1,5; Vázquez Decl. ¶ 8. Avon is correct that these assertions go to the merits of plaintiffs’
underlying claim, and they play no part in my determination that conditional certification is
appropriate. The same is true of Rosselló’s assertion that DSMs do not engage in “direct sales and
promotional work to the public,” Rosselló Decl. ¶ 5, which, in any case, seems at least partially
targeted at the FLSA’s exemption for “outside salesmen,” rather than the administrative exemption

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

8

knowledge, however, require further discussion. As Avon notes, even courts which decline
to apply Rule 56 in full insist that declarations at the conditional certification stage be based
on personal knowledge. E.g., Lee, 980 F. Supp. 2d at 762; White, 236 F.R.D. at 369.
In their declarations, plaintiffs repeatedly purport to describe not only their own
duties and employment conditions, but also those of all other DSMs in Puerto Rico.
Villeneuve and Vázquez assert that all DSMs performed the same set of enumerated tasks.
Villeneuve Decl. ¶ 2; Vázquez Decl. ¶ 5. Each plaintiff asserts, either directly or indirectly,
that Avon classified all DSMs as exempt. Rosselló Decl. ¶¶ 2, 7; Villeneuve Decl. ¶¶ 3, 5;
Vázquez Decl. ¶ 8. Each asserts that Avon’s “production” or “performance requirements”
necessitated that all DSMs work hours that would constitute overtime for a non-exempt
employee. Rosselló Decl. ¶ 6; Villeneuve Decl. ¶ 4; Vázquez Decl. ¶ 7. And each asserts that
no DSM was provided by Avon with overtime compensation. Rosselló Decl. ¶ 7; Villeneuve
Decl. ¶ 5; Vázquez Decl. ¶ 8.
Frustratingly, none of the declarations contains an overarching, unequivocal avowal
of personal knowledge. Villeneuve and Vázquez do, however, both preface their description
of DSMs’ duties with the phrase “to my knowledge.” Villeneuve Decl. ¶ 2; Vázquez Decl.
¶ 5. Avon claims that, by using this phrase, they “implicitly admit that they have no actual
knowledge of the veracity of the information they swear to be true.” Docket No. 36, at 5.
Though the phrase is somewhat ambiguous, I cannot agree; in context, it is better read as an
affirmative assertion of personal knowledge. See SCR Joint Venture L.P. v. Warshawsky,
559 F.3d 133, 135 (2d Cir. 2009) (“[A] statement made ‘to my knowledge,’ unlike a
statement made ‘upon information and belief,’ is sufficient to assert personal knowledge.”).
Personal knowledge may be contextually inferred, and courts at the conditional
certification stage often presume an employee’s familiarity with his employer’s general
practices and the general experiences of other employees. See Lee, 980 F. Supp. 2d at 764
(“[I]t is reasonable to infer at this stage that [plaintiffs] had personal knowledge of the
ultimately at issue here. See 29 U.S.C. § 213(a)(1); 29 C.F.R. §§ 541.500, .503.

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

9

employment conditions of other Service Coordinators based upon their own observations and
experiences during their employment.”); Lujan v. Cabana Mgmt., Inc., 284 F.R.D. 50, 65
(E.D.N.Y. 2012) (“[I]t is reasonable to infer that . . . employees would have first-hand
knowledge of [their employer’s] employee policies and practices by virtue of their tenure
[with employer].”); Reyes v. AT & T Mobility Servs. LLC, 759 F. Supp. 2d 1328, 1334
(S.D. Fla. 2010) (“[I]t is reasonable to assume at this stage that the affiants would have
learned what other Retail Account Executives did during the normal course of their
employment, such as during discussions with other employees, visiting other stores,
reviewing emails from co-workers or reviewing material distributed by Defendant.”); White,
236 F.R.D. at 369 (“[I]t is reasonable to infer from the evidence submitted that [plaintiffs], as
employees of [defendant], would have learned during the normal course of their employment
how the company operates and what the company’s policies were.”); Davis v. Valley
Hospitality Servs., LLC, 372 F. Supp. 2d 641, 653 (M.D. Ga. 2005) (“[C]ommon sense
dictates that if an affiant is an employee of a company, she has personal knowledge of events
and circumstances that occurred at the company within her sphere of observation.”).9
Here, it is reasonable to infer, based on their positions and experience, that plaintiffs
have personal knowledge of the duties generally imposed by Avon upon DSMs in Puerto
Rico, Avon’s general policy of classifying those DSMs as exempt, and the hours generally
worked by other DSMs.10 Avon’s motion to strike is therefore denied in full.

9

In Colson v. Avnet, Inc., 687 F. Supp. 2d 914 (D. Ariz. 2010), cited liberally by Avon, the
court disregarded for lack of personal knowledge declarations purporting to describe the duties of a
nationwide class of employees, pointing out that the declarants had no personal experience outside a
single state. Id. at 928–29. Colson is distinguishable in that plaintiffs in this case describe the
experiences only of other DSMs in Puerto Rico. While employees may not be expected to learn, in
the general course of employment, how their extra-state counterparts behave, it is far less of a leap to
suppose that one Puerto Rico DSM knows what another is expected to do. Any suggestion in Colson
that this kind of personal knowledge cannot be inferred—a suggestion that would stand in stark
contrast to the cases already cited—is unpersuasive.
10
It is arguably somewhat less reasonable to infer personal knowledge of the hours worked
by other DSMs than to infer personal knowledge of other DSMs’ duties and Avon’s broad exemption
policy. The issue is, however, ultimately moot. As will be discussed, plaintiffs need not show that
other DSMs worked overtime; it is sufficient to show that Avon classified all DSMs as exempt.

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

IV.

10

Conditional Certification
Plaintiffs have made the requisite modest factual showing that they are similarly

situated to members of the putative class, and conditional certification is therefore warranted.
The evidence before the court is sufficient, at this preliminary stage, to demonstrate that
members of the proposed class were uniformly subjected by Avon to a single policy—that is,
their allegedly improper classification as exempt employees—and that they performed
similar, if not identical, duties.
A.

Similarly Situated Analysis

There is little question plaintiffs have made a modest factual showing that Avon
classified all Puerto Rico DSMs as exempt—they assert as much in their declarations. Avon,
moreover, apparently concedes that it has such a uniform policy; its opposition trumpets its
confidence “that its DSMs in Puerto Rico are properly classified as exempt.” Opp. 2. This, of
course, does not end the matter. As Avon notes, plaintiffs cannot carry their burden merely
by offering evidence of common classification. See Shipes v. Amurcon Corp., No. 10-14943,
2012 WL 995362, at *9 (E.D. Mich. Mar. 23, 2012) (“[I]t is not enough, even at the notice
stage, to allege lead and opt-in plaintiffs are similarly situated because of the defendant’s
common scheme to misclassify them as exempt.”); Colson, 687 F. Supp. 2d at 927 (similar);
Morisky v. Pub. Serv. Elec. & Gas Co., 111 F. Supp. 2d 493, 498 (D.N.J. 2000) (similar). In
misclassification cases especially, “‘similarly situated’ must be analyzed in terms of the
nature of the job duties performed by each class member, as the ultimate issue to be
determined is whether each employee was properly classified as exempt,” a question that
turns on the character of work performed. Shipes, 2012 WL 995362, at *10. This point, in
itself, is unobjectionable. But Avon’s insistence that plaintiffs premise their motion on
nothing more than the existence of a DSM-wide classification practice is simply untenable in
light of the available evidence. Plaintiffs have made an adequate showing that they and
members of the proposed class perform similar duties.
Each submitted an unsworn declaration under penalty of perjury describing the work

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

11

performed by DSMs in Puerto Rico and Avon’s classification of DSMs for wage-and-hour
law purposes. Rosselló avers that in her current position as a DSM she “spend[s] the majority
of [her] time engaged in . . . recruiting persons to become [ISRs] . . . and then informing
these independent contractors about [Avon’s] product line.” Rosselló Decl. ¶ 4. Villeneuve
and Vázquez describe their duties—and, as discussed, the duties of other DSMs—similarly,
though in greater detail, stating that they spend “the vast majority of time in the field
recruiting and training [ISRs] and recruiting potential new hires to become [ISRs], filling out
pre-formatted forms and processing the new [ISRs], attending weekly webinars and/or
teleconferences regarding [Avon’s] sales goals, and reading material provided by [Avon].”
Villeneuve Decl. ¶ 2; Vázquez Decl. ¶ 5.
Plaintiffs also attached to their reply two DSM job descriptions, apparently prepared
by Avon and signed by Vázquez, and the deposition of Division Sales Manager María
Echenique, taken in a separate action brought by Vázquez against Avon. The job
descriptions, consistent with plaintiffs’ declarations, state that a DSM’s “purpose” and
“general function” is to “[r]ecruit, train, and motivate” ISRs in order to meet Avon’s perdistrict sales objectives. Reply, Exs. B–C.11 Echenique’s testimony likewise jibes with
plaintiffs’ account of their duties. She testified that DSMs spend “maybe” 50 percent of their
time recruiting new ISRs, with the rest of their time divided between motivating inactive
ISRs, informing ISRs about Avon’s catalog and sales goals, holding sales conferences for the
ISRs, and meeting with and reviewing the results of Leaders—specialized ISRs with the
power to recruit others. Echenique Dep. 42:10–44:12, 50:1–:6.
Contrary to Avon’s contention, plaintiffs have provided substantially more relevant
evidence than was present in Shipes, Colson, and Morisky. In Shipes, the plaintiff, seeking to
certify a class of all exempt employees, relied solely on her complaint, which explicitly
alleged that the proposed class members performed various duties, and her bare-bones
One of the job descriptions, dated July 31, 2004, lists the relevant position as “Zone
Manager.” Reply, Ex. C, Docket No. 48-2. Avon formerly referred to DSMs by other titles, including
District Zone Manager. Vázquez Decl. ¶ 2; Echenique Dep. 10:23–11:2, 13:10–15:6.
11

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

12

affidavit, which asserted only that the defendant company employed others who worked
overtime. 2012 WL 995362, at *11. The court contrasted the plaintiff’s showing with that
made, successfully, in Wlotkowski v. Michigan Bell Telephone Co., 267 F.R.D. 213
(E.D. Mich. 2010), where 35 affidavits made clear that all class members “held the same job
title, performed similar duties, and shared the same primary job duty.” Shipes, 2012 WL
995362, at *11. Though plaintiffs have offered far fewer declarations than in Wlotkowski,
they have offered far more than in Shipes, and their declarations establish exactly those facts
the Shipes court found wanting.
In Colson, the plaintiff submitted three declarations, which the court found, under the
Rule 56 standard already rejected here, almost entirely inadmissible. See 687 F. Supp. 2d at
928–29. Stripped of their offending portions, the declarations together described only the
experience of a single former employee in a single office, id. at 929, and thus did not show
that all similarly titled employees nationwide “performed similar tasks,” id. at 928. As
discussed, plaintiffs’ declarations are admissible at this stage, and affirmatively state exactly
what was found lacking in Colson—that plaintiffs and potential opt-ins share similar duties.
The Colson court also declined to consider a purported job description furnished by the
plaintiff, noting that it explicitly described a position in Mexico, while the proposed class
was limited to employees holding that position in the United States. Id. at 929. There is no
such infirmity with the job descriptions furnished by plaintiffs here; they plainly cover the
DSM position in Puerto Rico. See Reply, Exs. B–C.
Finally, in Morisky, the plaintiffs failed completely to describe any job
responsibilities shared by all class members, vaguely referring only to a common connection
to electricity production. 111 F. Supp. 2d at 498. More specificity was required especially
given the breadth of the proposed class, which encompassed all employees allegedly
misclassified as administrative, regardless of specific job titles. See id. at 496–97. Plaintiffs
in this case have named specific tasks performed by all members of the putative class, and
the class includes only DSMs.

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

13

In addition to arguing generally that plaintiffs have failed to provide sufficient
evidence, Avon lodges two further objections to the particulars of plaintiffs’ showing. It
argues, first, that inconsistencies in plaintiffs’ declarations illustrate that not even they, let
alone other Puerto Rico DSMs, perform similar duties. Rosselló, Avon notes, asserts that she
spends the majority of her time recruiting ISRs and informing them about Avon’s products,
while Villeneuve and Vázquez assert that they, and all DSMs, spend the majority of their
time recruiting and training ISRs, in addition to several other tasks. Rosselló Decl. ¶ 4;
Villeneuve Decl. ¶ 2; Vázquez Decl. ¶ 5. At this stage, however, this slight inconsistency—
to the extent that plaintiffs indeed describe different duties, rather than essentially the same
duties slightly differently—is not fatal. Plaintiffs must show only that the putative class
members’ duties are similar, not that they are identical. Perez, 959 F. Supp. 2d at 231.
Plaintiffs’ declarations, Avon’s job descriptions, and Echenique’s testimony show that all
DSMs are similarly responsible for recruiting ISRs and overseeing them in some capacity.
Avon’s second argument is more complex. It contends that even if DSMs have the
same general job description, the precise manner in which they perform their duties varies
widely. Collective action is therefore inappropriate, Avon says, because the court will
ultimately need to “engage in a fact-intensive, case-by-case examination of the duties
performed by each class member” to determine whether any particular DSM is properly
classified as exempt. Opp. 14–15. Though not without some surface appeal, this argument
also fails. Plaintiffs’ evidence shows that they and all Puerto Rico DSMs perform similar
duties. In an attempt to negative plaintiffs’ declarations and other submissions, Avon
attached to its opposition several declarations of its own, which purportedly illustrate that, in
practice, DSMs do such different work that collective evaluation of their proper classification
is impossible. See Ponce Decl., Docket No. 24-2; Velázquez Decl., Docket No. 24-4; Freire
Decl., Docket No. 25-1. But these declarations show no such thing; if anything, in fact, they
tend to support plaintiffs’ position that DSMs all have similar duties.
To be sure, the declarations emphasize that the manner in which DSMs perform their

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

14

duties varies. Suzzette Ponce Bobonis (“Ponce”), Janet Velázquez Santiago (“Velázquez”),
and Ana Freire Rodríguez (“Freire”), Avon employees currently or formerly employed as
DSMs, all assert that each individual DSM’s assigned district is, in effect, her own business,
and that DSMs have ample discretion in how exactly they allocate their time between the
several tasks necessary to meet their particular district’s needs. Ponce Decl. ¶¶ 5–9, 11;
Velázquez Decl. ¶¶ 2–3, 8–11; Freire Decl. ¶¶ 3–4, 10, 14. However, their descriptions of the
duties themselves are largely consistent with plaintiffs’ own descriptions and other
supporting materials. See Betancourt v. Maxim Healthcare Servs., Inc., No. 10 C 4763, 2011
WL 1548964, at *9 (N.D. Ill. Apr. 21, 2011) (“[D]efendant’s affidavits from its current
employees do not, on their face, show conclusively that it is impossible or even imprudent to
certify a class of similarly situated Recruiters . . . . To the contrary, defendant’s affidavits
seem to show that Recruiters throughout the company generally perform many of the same
tasks, though arguably in various ways along a spectrum.”).
Ponce, for example, speaks of DSMs’ discretion to “customize[] the way they go
about recruiting, training, coaching and developing [ISRs],” and to “develop and implement
unique approaches to training and coaching” their ISRs. Ponce Decl. ¶¶ 5, 8. Though Ponce’s
declaration tends to show that DSMs have the flexibility to choose how to recruit and train
ISRs, it does nothing to counter plaintiffs’ claim that a significant part of every DSM’s job
involves the recruitment and training of ISRs—quite the opposite. See Rosselló Decl. ¶ 4;
Villeneuve Decl. ¶ 2; Vázquez Decl. ¶ 5.12 Velázquez and Freire assert that, as DSMs, they
do not merely recruit ISRs, but are also responsible for “training,” “developing,” and
“motivating” them. Velázquez Decl. ¶ 4; Freire Decl. ¶ 13. This distinction between
recruitment and post-recruitment activities is apparently intended to distinguish Velázquez
and Freire from Rosselló, who asserts simply that she spends the vast majority of her time
12

Indeed, even if Ponce, a former DSM who subsequently held two supervisory positions
enabling her to observe other DSMs in action, had stated that all DSMs exercise discretion in
performing specific, enumerated tasks other than those listed by plaintiffs, her declaration still would
not undercut plaintiffs’ general position that DSMs are similarly situated with respect to job duties.

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

15

recruiting ISRs and informing them about Avon’s products. Rosselló Decl. ¶ 4. As discussed,
however, the fact that Rosselló does not explicitly state that she trains or otherwise
supervises her ISRs does not mean, at this stage, that her duties are not similar to those of
DSMs who do. And the ostensibly fuller catalog of duties offered by Avon’s declarants is
entirely in accord with—that is, similar, if not identical, to—the accounts of Villeneuve and
Vázquez, the written job descriptions furnished by plaintiffs, and Echenique’s testimony.13
Finally, Ponce targets Rosselló’s account of the precise way she spends her time,
denying that she spends that “vast majority” of her time on recruitment. Ponce Decl. ¶ 10;
see Rosselló Decl. ¶ 4. Because Ponce admits that she and all DSMs spend some time
recruiting ISRs, her repudiation of Rosselló’s “vast majority” language is relevant, if at all,
only as to whether recruitment is a DSM’s primary duty. See 29 C.F.R. § 541.200(a);
Witteman v. Wis. Bell, Inc., No. 09-CV-440-VIS, 2010 WL 446033, at *2 (W.D. Wis. Feb. 2,
2010) (“Although defendant devotes most of its brief to an argument that there are numerous
differences among the potential class members, it says surprisingly little about the reasons
those alleged differences are relevant for the purpose of determining whether plaintiffs are
exempt from the FLSA, which is the only difference that matters.”). But the DOL regulations
specifically provide that a mechanical comparison of the hours an employee spends on each
of his several duties is not, by itself, sufficient to determine which of those duties is
“primary.” 29 C.F.R. § 541.700. For a particular duty to be primary, it is neither necessary
nor sufficient that it take up the majority of the employee’s time; the ultimate determination
requires scrutiny of “all the facts in a particular case, with the major emphasis on the
character of the employee’s job as a whole.” Id. Avon has not, with Ponce’s declaration or

Ponce also asserts: “[Recruitment] will not give a DSM all the results that she needs. It is
only part of what needs to be done in a campaign.” Ponce Decl. ¶ 10. Like those of Velázquez and
Freire, this statement is insufficient to show that Rosselló is not similarly situated to Villeneuve and
Vázquez, or that plaintiffs are not similarly situated to other DSMs in Puerto Rico. Moreover, Ponce
is speaking not only for herself, but for DSMs in general; implicit in her statement is the proposition
that, to meet Avon’s per-campaign goals, all DSMs must perform certain tasks. That, of course, is
exactly what plaintiffs claim in seeking class certification.
13

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

16

any other evidence, provided any reason to doubt that individual DSMs’ jobs, viewed
holistically, are sufficiently similar in character to support conditional certification.
Avon relies on several cases that, given the discussion so far, are inapposite,
unpersuasive, or both. In Aguirre v. SBC Communications, Inc., 2006 WL 964554 (S.D. Tex.
Apr. 11, 2006), the plaintiffs failed to make even a minimal factual showing that the putative
class was similarly situated, resting entirely on the conclusory allegations in their complaint
and motion for conditional certification. Id. at *6. That, of course, is not the case here;
plaintiffs have provided affirmative evidence undiminished in force by Avon’s own
submissions. Reich v. Homier Distributing Co., 362 F. Supp. 2d 1009 (N.D. Ind. 2005),
involved the FLSA’s exemption for loaders—employees who spend a substantial part of
their time using their discretion to safely load merchandise onto trucks. Id. at 1013; see
29 U.S.C. § 213(b)(1); 29 C.F.R. § 782.5. The putative class comprised jack-of-all-trades
“sales partners,” some of whom were sometimes responsible for merchandise-loading. Reich,
362 F. Supp. 2d at 1011. The court denied conditional certification because there was no
showing at all that the entire class actually performed loading duties. Id. at 1013–15. Here,
plaintiffs have preliminarily shown that DSMs perform the same core duties; the question
remaining in this case is whether those duties are administrative, and that question may be
answered on a collective basis.
The court in Holt v. Rite Aid Corp., 333 F. Supp. 2d 1265 (M.D. Ala. 2004),
considered a putative class of retail store managers and assistant managers who claimed that,
contrary to their titles and formal job descriptions, they mainly performed low-level,
distinctly non-managerial tasks, and were thus improperly classified as exempt “executives.”
Id. at 1271–75. Though the plaintiffs presented evidence that they each spent the majority of
their time doing busywork, the defendant provided employee affidavits showing that the
same was not true for other class members. Id. at 1273–74. The court concluded that
determining whether individual class members were properly classified would turn on
individualized proof to such a degree that a collective action was inappropriate. Id. at 1274–

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

17

75. Holt is distinguishable in terms of both the evidence presented and plaintiffs’ theory of
the case.
While in Holt the defendant’s evidence controverted the plaintiffs’ sweeping
assertions that all managers mainly performed blue-collar tasks, Avon’s employee affidavits,
as discussed, do not show that DSMs perform duties other than those plaintiffs identify.
Moreover, plaintiffs here do not acknowledge the administrative nature of the duties in their
formal job descriptions but claim that, in practice, they perform mostly non-administrative
tasks. They claim, rather, that their official duties—recruiting and training ISRs—are nonadministrative. See Compl. ¶¶ 20–21, 24–25. This distinction necessarily affects the showing
necessary to justify conditional certification; it is easier to show that employees with a
common title are all expressly required to perform a common set of tasks than to show that
those employees all go off-script in similar ways. See Guillen v. Marshalls of MA, Inc., 750
F. Supp. 2d 469, 476 (S.D.N.Y. 2010) (discussing the different evidence required for
challenges to official duties and claims that employees were unofficially required to perform
non-exempt tasks); Smallwood, 710 F. Supp. 2d at 752 (same). Because the crux of
plaintiffs’ claim is that their core duties are non-administrative, all they need to show, at this
stage, is that those duties are shared by all potential plaintiffs—and they have done so.
As in Holt, the plaintiff in Mike v. Safeco Insurance Co. of America, 274 F. Supp. 2d
216 (D. Conn. 2003), “expressly disavow[ed] [his] job description.” Id. at 221. Finally, at
issue in Clausman v. Nortel Networks, Inc., IP 02-0400-C-M/S, 2003 WL 21314065
(S.D. Ind. May 1, 2003), was the FLSA’s outside salesman exemption, which, under the
DOL regulations then in effect, applied only to employees who spent at least 80 percent of
their time making sales outside the office. Id. at *4. The plaintiff admitted that putative class
members had discretion to decide how much time they spent on the road, and the court cited
the need for individualized inquiries into work schedules as one reason for denying
conditional certification. Id. at *2, *4. The evidence before the court also revealed that some
class members personally finalized sales, while others did not, instead utilizing an outside

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

18

vendor; this, too, precluded conditional certification, since it was unclear whether some class
members were technically salesmen within the meaning of the FLSA. Id. at *1, *4–5. Here,
application of the administrative exemption does not strictly depend on the particulars of an
employee’s schedule. See 29 C.F.R. § 541.700. And though Avon has presented evidence
that DSMs perform their duties in different ways, the identified distinctions do not affect
whether the court will ultimately be able to determine collectively the exempt status of
recruiting and training ISRs.
To the extent some or all of these decisions may be read to stand for the broader
proposition that misclassification cases are presumptively unsuited for collective action, they
are unpersuasive. It is true, as a general matter, that deciding the applicability of the
administrative and other exemptions requires a fact-specific inquiry. Morisky,
111 F. Supp. 2d at 498. But, as many courts have recognized, “the need to examine the facts
of an employee’s work does not categorically preclude collective determination of
exemption.” Kress v. PricewaterhouseCoopers, LLP, 263 F.R.D. 623, 630 (E.D. Cal. 2009);
see, e.g., In re Wells Fargo Wage & Hour Emp’t Practices Litigation (No. III), No. H-112266, 2012 WL 3308880, at *27–29 (S.D. Tex. Aug. 10, 2012) (granting conditional
certification despite defendant’s appeal that individualized exemption analyses were
required); Indergit v. Rite Aid Corp., Nos. 08 CIV. 9361(PGG), 08 CIV. 11364(PGG), 2010
WL 2465488, at *9–10 (S.D.N.Y. June 16, 2010) (same); Geer v. Challenge Fin. Investors
Corp., No. 05-1109-JTM, 2005 WL 2648054, at *3–4 (D. Kan. Oct. 17, 2005) (same);
Pendlebury v. Starbucks Coffee Co., No. 04-CV-80521, 2005 WL 4500, at *3–4 (S.D. Fla.
Jan 3, 2005) (same).
Misclassification claims are eminently susceptible to collective proof where, as here
plaintiffs have preliminarily shown, the facts relevant to the exemption at issue are common
to all class members. See Indergit, 2010 WL 2465488, at *10. To unduly restrict the
availability of collective litigation in misclassification cases would be to contravene
congressional intent. “The remedial nature of the FLSA and the purposes of Section 216

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

19

militate strongly in favor of allowing cases to proceed collectively.” Wells Fargo, 2012
WL 3308880, at *24 (quoting Roussell v. Brinker Int’l, Inc., No. H-05-3733, 2008 WL
2714079, at *24 (S.D. Tex. July 9, 2008)) (internal quotation marks omitted); see John
Alden, 126 F.3d at 7 (recognizing FLSA’s remedial purpose). Plaintiffs have shown enough
to proceed to the next stage of the collective action process.
B.

“ Aggrieved Individuals”

Avon argues that conditional certification should be denied because plaintiffs have
failed to show that other DSMs worked overtime.14 Some courts in this district and circuit
have stated, without much elaboration, that plaintiffs seeking conditional certification must
provide “a reasonable basis for crediting the assertion that aggrieved individuals exist.”
Levecque v. Argo Mktg. Grp., Inc., 2015 WL 3672647, at *7 (D. Me. June 12, 2015); Perez,
959 F. Supp. 2d at 231; Johnson, 802 F. Supp. 2d at 234 (quoting Albanil v. Coast 2 Coast,
Inc., Civil Action No. H-08-468, 2008 WL 4937565, at *6 (S.D. Tex. Nov. 17, 2008)). But it
is not entirely clear what, if anything, these courts had in mind by expressing this
requirement. Though it is noted as an essential prerequisite for conditional certification in
Levecque and Johnson, neither opinion contains any discussion specifically about whether
aggrieved individuals were shown to exist. In Perez, to the extent the court conducted an
“aggrieved individuals” inquiry at all, it was subsumed in a more general discussion of
whether the proposed class members shared similar duties and were subjected to a common
policy—questions already answered here. See 959 F. Supp. 2d at 231–32. It appears that, for
these courts, the “aggrieved individuals” requirement is more nominal than operative.
Other courts, notably in the Southern District of Texas, have given the requirement

14

Avon also suggests that plaintiffs have failed to show the existence of other DSMs, period,
noting that they do not specify the size of the proposed class. True enough—but there is no question
that there are at least some Puerto Rico DSMs other than plaintiffs themselves and the two Avon
declarants currently so employed. One of those declarants notes that she is currently assigned to
District 76. Friere Decl. ¶ 2. Ponce, currently a Field Operations Manager, was formerly employed as
a DSM assigned to District 73. Ponce Decl. ¶ 3. It is reasonable to infer from these numbers that there
are many other similarly situated DSMs.

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

20

some teeth, or at least examined it as a discrete factor in the larger “similarly situated”
inquiry. See Walker v. Hongua Am., LLC, 870 F. Supp. 2d 462, 465, 467–68 (S.D. Tex.
2012); Tolentino v. C & J Spec-Rent Servs. Inc., 716 F. Supp. 2d 642, 647, 649 (S.D. Tex.
2010); Albanil, 2008 WL 4937565, at *6. But many more make no mention of the need for
plaintiffs to show anything beyond that they and potential opt-ins performed similar duties
and were governed by a single policy or plan. See, e.g., Smallwood, 710 F. Supp. 2d at 752;
Kress, 263 F.R.D. at 627–28; Damassia v. Duane Reade, Inc., No. 04 Civ. 8819(GEL), 2006
WL 283971, at *3 (S.D.N.Y. 2006); O’Donnell, 429 F. Supp. 2d at 249. Avon has pointed to
no case, and I am aware of none, denying conditional certification solely on the basis that the
plaintiffs failed to show that all class members in fact regularly worked overtime.
In any event, Avon’s argument rests on a premise I have rejected—that plaintiffs’
assertions that other DSMs worked overtime are not based on personal knowledge. And even
if plaintiffs lacked personal knowledge as to the precise hours worked by their colleagues, it
would be enough that they have personal knowledge, perhaps more easily inferred, of
Avon’s allegedly improper exemption policy for DSMs, which necessarily implies that any
DSMs who did work overtime did not receive time-and-a-half compensation. See Walker,
870 F. Supp. 2d at 467–68 (finding “aggrieved individuals” element satisfied where
plaintiffs’ affidavits established that class members “were not paid overtime”).
Moreover, there should be no concern where, as here, the proposed class specifically
consists only of employees who worked overtime during the relevant period. See Watson v.
Advanced Distrib. Servs., LLC, 298 F.R.D. 558, 564 (M.D. Tenn. 2014) (finding competent
evidence that putative class members regularly worked overtime but also noting that,
regardless, “the court-supervised notice will specify that it applies only to loaders who
worked over 40 hours a week during the relevant time frame”); cf. Brown v. Money Tree
Mortg., Inc., 222 F.R.D. 676, 681–62 (D. Kan. 2004) (“Money Tree argues that class
certification is inappropriate because whether each putative class member will have a
meritorious claim under the FLSA will depend on whether the employee worked overtime

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

21

hours. The proposed class definition, however, only encompasses those employees who
worked more than forty hours per week.”).
C.

Interest in Joining

Avon’s final argument is that it is not enough to suppose that other DSMs may be
interested in joining the suit. Plaintiffs, says Avon, must demonstrate actual interest, and
they have not. Avon is correct that numerous courts have withheld conditional certification
absent evidence that some putative class members desire to join. Perez, 959 F. Supp. 2d at
232 (“The Court joins district courts within the First Circuit, as well as numerous other
district courts and the Eleventh [Circuit], in holding that a plaintiff must demonstrate that
similarly situated employees are truly interested in joining the suit before the Court may
grand conditional certification.”); Johnson, 802 F. Supp. 2d at 237 (same; collecting cases);
O’Donnell, 429 F. Supp. 2d at 250–51. At the same time, many other courts have declined to
impose such a requirement. See, e.g., Shipes, 2012 WL 99532, at *9; Jesiak v. Fire Pros,
Inc., 275 F.R.D. 242, 247 (W.D. Mich. 2011); Lyons v. Ameriprise Fin., Inc., No. 10-503,
2010 WL 3733565, at *5 (D. Minn. Sept. 20, 2010); Heckler v. DK Funding, LLC, 502 F.
Supp. 2d 777, 780 (N.D. Ill. 2007); Reab v. Elec. Arts, Inc., 214 F.R.D. 623, 629 (D. Colo.
2002). For three reasons, I find this latter set of authorities persuasive and thus conclude that
conditional certification is appropriate despite plaintiffs’ failure to show that any other DSMs
desire to join this suit.
First, as courts in this district and circuit have acknowledged, a hard-and-fast
requirement that plaintiffs demonstrate opt-in interest risks creating “a ‘chicken and egg’
problem.” Perez, 959 F. Supp. 2d at 232 n.4 (quoting Johnson, 802 F. Supp. 2d at 238); see
also Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 267 (D. Minn. 1991) (discussing
“chicken and egg limbo” in context of larger “similarly situated” inquiry); Sperling v.
Hoffmann-La Roche, Inc., 118 F.R.D. 392, 406 (D.N.J. 1988) (same). Often, as here, a
plaintiff moving for conditional certification hopes to obtain from the defendant the identities
and contact information of every member of the proposed class; with this information in

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

22

hand, the plaintiff can disseminate court-approved notice, the purpose of which is to
determine whether any class members want to join the suit. Given the point of seeking
conditional certification, an interest requirement may be infeasible in many cases. Asking a
plaintiff “who does not know the identities of the members of the proposed class to provide
information about class members’ desire to opt in could require the plaintiff to produce the
very information that she s[eeks] to obtain through conditional certification and notice.”
Johnson, 802 F. Supp. 2d at 238 (quoting Detho v. Bilal, Civil Action No. H-07-2160, 2008
WL 2962821, at *3 (S.D. Tex. July 29, 2008)); see also Heckler, 502 F. Supp. 2d at 780
(finding that an interest requirement “puts the cart before the horse” and “does not make
sense” because it would “essentially force plaintiffs or their attorneys to issue their own form
of informal notice,” undermining “a court’s ability to provide potential plaintiffs with a fair
and accurate notice.”); Wise v. Patriot Resorts Corp., C.A. No. 04-30091-MAP, 2006 WL
6110885, at *1 (D. Mass. 2006) (“[I]t is unrealistic to expect a party to consider whether to
‘opt-in’ to a collective action before that party is aware of the pendency of the action.”).
Avon rightly points out that Johnson found this concern overblown in light of “the
notice stage’s light burden combined with any preliminary discovery a Court might allow.”
802 F. Supp. 2d at 239. There, however, the court ultimately based its decision to require
evidence of opt-in interest on the fact that the plaintiffs, former DJs at adult nightclubs,
together had “more than twelve years of club experience and admit[ted] to knowing a
number of VCG disc jockeys well enough to be aware of their dissatisfaction with the pay
system.” Id. at 239. Here, plaintiffs have not admitted that they know other DSMs in Puerto
Rico, and there is nothing in the record to suggest that is the case. Indeed, as Avon’s own
declarants repeatedly assert, each DSM is effectively her own business, working in her
specific district with relative independence. The job is different in character from those
confined to a central location, such as a nightclub or a run-of-the-mill office, where
employees have regular opportunities to interact. Despite plaintiffs’ years of experience at
Avon, there is simply no basis to presume that they are in a position to contact other

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

23

members of the proposed class in order to gauge their interest in joining.15 Nor has there
been preliminary discovery of the sort contemplated in Johnson; at this stage, discovery has
been limited to the claims brought by plaintiffs themselves. Docket No 32. Cf. Detho,
2008 WL 2962821, at *3 (finding no “chicken and egg” problem where plaintiff failed to
provide evidence of opt-in interest even after court ordered defendant to provide identities of
former and current employers).
Second, the motivations underlying the interest requirement are unconvincing. Courts
have provided the following justification:
[T]here is no guarantee that [similarly situated employees] will actually seek
to join the lawsuit. And, if [they] were to decline to opt in to the case, no
purpose would have been served by “certifying” a collective-action “class”—
the case ultimately would involve no one other than the plaintiff.
Furthermore, if an FLSA plaintiff were required to show only that other
potential plaintiffs exist . . . it would “render preliminary class certification
automatic, as long as the Complaint contains the magic words: ‘Other
employees similarly situated.’”
Johnson, 802 F. Supp. 2d at 237 (quoting Parker v. Rowland Express, Inc., 492 F. Supp. 2d
1159, 1165 (D. Minn. 2007)). While certainly there will be some cases in which conditional
certification turns out to have been a waste of time, I question the frequency of such an
occurrence. It is not reasonable to assume that similarly situated employees will regularly
decline to join in a meritorious claim; as for non-meritorious claims, defendants may, and
should, move for dismissal rather than speculate that no opt-in plaintiffs will be forthcoming.
Nor is it realistic to imagine that, absent an interest requirement, courts will be left rubberstamping complaints alleging the existence of similarly situated employees. The great
majority of courts demand that plaintiffs support conditional certification with evidence
beyond mere allegations. Whatever phrases plaintiffs insert into their complaints, they must
15

This conclusion does not conflict with my finding that plaintiffs have personal knowledge
of other DSMs’ duties, hours worked, and classifications. It is one thing to say that employees—even
dispersed employees like DSMs—are presumably aware of what their employer demands of others in
the same position, how much work is required to meet those demands, and how their employer
classifies that position. It is something else to say that such employees should be expected to possess
their colleagues’ contact information.

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

24

still provide a minimal factual basis for the claim that there are others similarly situated.
Lastly, an interest requirement would undermine the FLSA’s broad remedial purpose.
Shipes, 2012 WL 995362, at *9; Reab, 214 F.R.D. at 629. The FSLA is designed to vindicate
the rights of employees, either individually or, when appropriate, collectively. Collective
action is appropriate when there are employees “similarly situated” to the named plaintiffs.
Plaintiffs here have shown that other Puerto Rico DSMs performed similar duties and were
similarly classified as exempt by Avon. That is all they must show at this initial stage.
V.

Content and Form of Notice; Scope of Discovery; Composition of Class
Avon raises a panoply of objections to the content of plaintiffs’ proposed notice, the

form of notice plaintiffs propose to employ, and the information plaintiffs request that the
court order Avon to provide. The parties have agreed to attempt to resolve these issues
between themselves should the court grant conditional certification. Some issues may
nevertheless be resolved at this time.
First, plaintiffs’ proposed notice is directed to Avon’s DSMs in general, not merely to
DSMs who work or worked in Puerto Rico, and plaintiffs seek discovery of contact
information for the same broad class. I read this as a drafting error rather than a legitimate
attempt to reach DSMs nation- or worldwide. In their complaint, plaintiffs refer to a “Puerto
Rico collective class” composed of current or former DSMs in Puerto Rico. Compl. ¶ 44.
Their motion is explicitly focused on DSMs employed in Puerto Rico. See Mot. 4, 7. Cf. Lee,
980 F. Supp. 2d at 768 (limiting conditional certification to a class of “service coordinators”
despite plaintiffs’ request for a class of all “non-supervisory, non-exempt employees,” where
plaintiffs’ motion focused solely on service coordinators). And, of course, there can be no
valid claim under Law 379 for any non-Puerto Rico DSMs. My recommendation that
conditional certification be granted is limited to certification of a class of employees who
worked as DSMs in Puerto Rico; plaintiffs have plainly failed to demonstrate that they are
similarly situated to DSMs who work or worked in any other location.
Second, plaintiffs seek to define the class as encompassing all employees who

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

25

worked as DSMs during the six years prior to November 6, 2014, the start of this suit, while
Avon argues that three years is the correct timeframe. Avon is correct; in requesting a sixyear period, plaintiffs misread Law 379’s statute of limitations. The prescriptive term is,
unambiguously, three years from the end of employment. 29 L.P.R.A. § 250j(a). Plaintiffs
note that an employee who no longer works for his employer when he initiates an action may
recover for violations during the last three years of his employment—which last three years
are likely more than three years removed from his bringing suit. Id. § 250j(c). That does not
mean, however, that such an employee may bring a claim more than three years after his
employment ends. Former DSMs who ceased their employment with Avon over three years
before the relevant date have no valid Law 379 claim and may not opt in.
The same term is proper under the FLSA, which provides for a limitations period of
two years unless the claim arises from a willful violation, in which case it is extended to
three years. 29 U.S.C. § 255(a). Plaintiffs allege that Avon willfully violated the FLSA.
Compl. ¶ 62. Though it is premature to make any finding as to willfulness, it is appropriate to
conditionally define the FLSA class by reference to the longer possible period. See Walker,
870 F. Supp. 2d at 472 (stating that a three-year period is proper for notice where plaintiffs
allege a willful violation); Prescott, 729 F. Supp. 2d at 370 (“At this stage of the certification
process, justice is best served by notice reaching the largest number of potential plaintiffs,
and I therefore employ the three years.”); Adams v. Inter-Con Sec. Sys., Inc., 242 F.R.D. 530,
542 (N.D. Cal. 2007) (declining to make a determination of willfulness but authorizing
notice to potential plaintiffs employed in the last three years). There is thus, for now, no
conflict between the FLSA and Law 379; all of plaintiffs’ claims require a three-year notice
period.16
The proposed notice should be amended accordingly. Though other issues remain,
Avon does not object to providing plaintiffs with the names and mailing addresses of all
16

Neither party has addressed whether the commencement of this suit tolled either the
FLSA’s or Law 379’s statute of limitations for future opt-in plaintiffs. I take no position on this issue.

Rosselló v. Avon Products, Inc., Civil No. 14-1815 (JAG/BJM)

26

members of the properly formulated class. The court should order that this information be
promptly disclosed and direct the parties to confer in good faith as to their lingering
disagreements.
CONCLUSION
For the above reasons, plaintiffs’ motion for conditional certification should be
GRANTED IN PART. The court should ORDER that (1) Avon promptly disclose the
names and mailing addresses of all individuals employed as a District Sales Manager in
Puerto Rico at any time during the three years prior to the filing of this suit, (2) the parties
confer in an effort to resolve their ongoing disagreements, and (3) the parties jointly file an
amended proposed notice by an appropriate date. Avon’s motion to strike is DENIED.
This report and recommendation is filed pursuant to 28 U.S.C. 636(b)(1)(B) and
Rule 72(d) of the Local Rules of this Court. Any objections to the same must be specific and
must be filed with the Clerk of Court within 14 days of its receipt. Failure to file timely and
specific objections to the report and recommendation is a waiver of the right to appellate
review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Davet v. Maccorone, 973 F.2d 22, 30–
31 (1st Cir. 1992); Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985
(1st Cir. 1988); Borden v. Sec’y of Health & Human Servs., 836 F.2d 4, 6 (1st Cir. 1987).
IT IS SO RECOMMENDED.
In San Juan, Puerto Rico, this 24th day of June, 2015.
S/Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge