Pierce et al v. Wyndham Vacation Resorts, Inc. et al

Filing 362

MEMORANDUM AND ORDER for the reasons herein, the Defendants Motion to Decertify the Conditionally Certified Collective Action Doc. 279 is DENIED. This action shall proceed on October 10, 2017, as a collective action. Signed by Magistrate Judge C Clifford Shirley, Jr on October 3, 2017. (JAN, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

JESSE PIERCE and MICHAEL PIERCE,
on behalf of themselves and all others
similarly situated,
Plaintiffs,
v.
WYNDHAM VACATION RESORTS, INC., and
WYNDHAM VACATION OWNERSHIP, INC.,
Defendants.

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No. 3:13-CV-641-CCS

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73(b) of the
Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings,
including entry of judgment [Doc. 193].
Now before the Court is the Defendants’ Motion to Decertify the Conditionally Certified
Collective Action [Doc. 279]. The Plaintiffs filed a Response [Doc. 298], and the Defendants filed
a Reply [Doc. 307]. During a status conference with the parties on August 7, 2017, the parties
stated that a hearing on the Motion was not necessary. The Motion is now ripe for adjudication.
Accordingly, for the reasons stated below, the Court finds the Defendants’ Motion [Doc. 279] not
well-taken, and it is DENIED.
I.

BACKGROUND
By way of background, the Defendants (collectively, “Wyndham” or “Defendants”)

provide family destination vacations. [Doc. 60-1 at ¶ 3]. Customers purchase points that may be
used for vacations at Wyndham resorts or other locations. [Id.]. Wyndham employs three groups

of Sales Representatives: (1) Front-Line Representatives, (2) In-House Sales Representatives, and
(3) Discovery Sales Representatives. [Id. at ¶¶ 4-5]. Further, relevant to the instant action,
Wyndham’s Tennessee operations span four Wyndham properties. [Id. at ¶ 12].

The Smoky

Mountain Region includes two properties located in Sevierville: The Crossing and The Lodge.
[Id.]. The Wyndham Nashville and the Wyndham Resort at Fairfield Glade (“The Glade”)
comprise the other Tennessee region. [Id.].
The Complaint in this matter was filed on October 23, 2013. [Doc. 1]. The Complaint
alleges that certain Sales Representatives who worked at the Defendants’ offices worked off the
clock and were not paid for working in excess of 40 hours in a work week. [Id. at ¶ 2]. The
Complaint alleges that the Defendants willfully violated the Fair Labor Standards Act (“FLSA”).
[Id. at ¶ 3]. The action was conditionally certified on August 21, 2014. [Doc. 84]. Specifically,
the collective action was defined as follows: Current and former non-exempt, commission-paid:
(1) Front-Line Sales Representatives, (2) In-House Sales Representatives, (3) Discovery Sales
Representatives, who were employed in the Defendants’ Tennessee Resorts between October 21,
2010, to October 31, 2013.
After the District Judge conditionally certified this action, the parties spent several months
disputing over the proposed notice and opt-in form. The District Judge entered an Order with
respect to the appropriate notice and opt-in form on June 1, 2015. [Doc. 125]. Subsequently, on
May 31, 2016, the parties consented to the undersigned for all further proceedings. [Doc. 193].
The undersigned set a scheduling conference, but it was continued so that the parties could
participate in mediation. [Doc. 197]. The mediation was unsuccessful, and the Court conducted
a scheduling conference with the parties on September 15, 2016. [Doc. 202].

During the

scheduling conference, the parties stated that they had agreed to allow the Defendants an additional

2

twenty-four (24) depositions. [Doc. 203]. The Court also set a hearing to address sample
representation and allowed the parties to file briefs regarding the appropriate sample
representation. [Id.].
At the hearing, the Plaintiffs proposed a sample representation of two groups: (1) opt-in
Plaintiffs who worked as Sales Representatives at one of Defendants’ four Tennessee resorts for
more than six months (Group 1); and (2) opt-ins Plaintiffs who worked as Sales Representatives
at one of the Defendants’ four Tennessee resorts for less than six months (Group 2). Through
random sampling, Group 1 consisted of 35 Plaintiffs (out of 139 opt-in Plaintiffs), and Group 2
constituted of 13 Plaintiffs (out of 25 opt-in Plaintiffs). Thus, both groups represent 25% and 50%,
respectively.

At the hearing, the Defendants argued that there should not be any sample

representation in this case. The Defendants continued that they should be permitted to take each
and every Plaintiffs’ deposition. After hearing from both parties, the Court limited discovery to
the Plaintiffs’ representative sampling because it appeared to be “fair and proportional to the needs
to the case” and would “minimize the burden of Plaintiffs and their counsel while still allowing
the Defendants an opportunity to depose these alleged representative Plaintiffs to determine the
similarity and ability to serve as representatives and/or to determine if there is any basis to their
various defenses.” [Doc. 215]. The Court continued:
Once the parties complete discovery of the representative Plaintiffs,
if the Defendants contend that either the Plaintiffs’ claims or the
Defendants’ defenses are too distinct or too individualized to permit
this subset of representative Plaintiffs to be used to establish a
collective class action and/or liability and/or damages, then
Defendants may move for either additional discovery beyond the
representative list and/or try to establish class decertification.
[Doc. 215]. Later, and because the Defendants had earlier agreed with the Plaintiffs to take only
twenty-four additional depositions, the Defendants moved the Court to allow them to depose the

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remaining members in the Plaintiffs’ sample representation. The Court granted [Doc. 254] the
Defendants’ request.
The Defendants have now moved for decertification.
II.

POSITIONS OF THE PARTIES
The Defendants argue [Doc. 279] that this case cannot be tried as a collective action, citing

the Supreme Court’s decision in Tyson Foods, Inc. v. Bouaphakeo, 577 U.S.—, 136 S. Ct. 1036
(2016) (hereinafter, “Tyson”) and because the Plaintiffs cannot establish that they are similarly
situated.

With respect to the former argument, the Defendants assert that Tyson compels

decertification. The Defendants argue that pursuant to Tyson, the Plaintiffs must present evidence
that is both the same across the class and sufficient to prove the individual claim of each employee
in an individual lawsuit.

Further, the Defendants contend that with respect to “so-called

representative testimony,” it must be admissible under the Federal Rules of Evidence. The
Defendants assert that the Plaintiffs’ purported representative sample is statistically inadequate.
Further, the Defendants submit that the Plaintiffs cannot satisfy Tyson’s requirements that the “socalled representative evidence” must be sufficient to prove the claims of each of the 167 employees
in individual lawsuits.1 Finally, the Defendants assert that the Plaintiffs cannot show that they are
similarly situated under the stricter standard to be applied by the Court at this stage of the litigation.
The Plaintiffs respond [Doc. 298] that Sixth Circuit precedent supports this action being
tried as a collective action. Further, the Plaintiffs state that decertification is unwarranted because
the evidentiary record overwhelmingly confirms that the Plaintiffs are similarly situated. The
Plaintiffs explain that they are similarly situated in their factual and employment settings and that

1

The Court observes that after the Defendants filed their Motion, several Plaintiffs have
agreed to have their consent form stricken. At the pretrial conference on September 25, 2017, the
parties stated that there were approximately 156 Plaintiffs in this action.
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the Defendants’ defenses are assertable on a collective basis. In addition, the Plaintiffs contend
that fairness and procedural considerations favor proceeding collectively. Finally, the Plaintiffs
argue that the Defendants mischaracterize Tyson, they erroneously rely on inapplicable Rule 23
standards, and they ignore the Supreme Court’s decision in Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680 (1946).
The Defendants filed a Reply [Doc. 307], stating that Sixth Circuit case law does not
compel a denial of the Motion to Decertify. The Defendants contend that the cases cited in the
Plaintiffs’ Response are both factually and procedurally inapposite to this case. The Defendants
argue that the Plaintiffs are not similarly situated in their factual and employment settings. In
addition, the Defendants assert that their defenses require an individualized inquiry and that
procedural and fairness considerations weigh in favor of decertification. Finally, the Defendants
reply that they have not mischaracterized Tyson and that they did not ignore the decision in Mt.
Clemens.
III.

ANALYSIS
The Court has considered both parties’ positions, and the Court finds the Defendants’

request for decertification not well-taken for the reasons further explained below. The Court will
begin with an overview of the FLSA and then turn to the Defendants’ arguments for decertification.
A.

Overview of the FLSA

The FLSA directs that an employee or employees may bring an action “against any
employer (including a public agency) in any Federal or State court of competent jurisdiction . . .
for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. §
216(b). However, “[n]o employee shall be a party plaintiff to any such action unless he gives his
consent in writing to become such a party and such consent is filed in the court in which such

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action is brought.” 29 U.S.C. § 216(b).
A plaintiff alleging a FLSA violation can bring a representative action for similarly situated
persons if the plaintiffs meet two requirements: “1) the plaintiffs must actually be similarly
situated, and 2) all plaintiffs must signal in writing their affirmative consent to participate in the
action.” Comer v. Wal–Mart Stores, Inc., 454 F.3d 544, 545 (6th Cir. 2006) (citations omitted).
An FLSA representative action is called a collective action and is different from a class action
brought pursuant to Rule 23 of the Federal Rules of Civil Procedure, in that it utilizes an opt-in
mechanism rather than the opt-out mechanism employed under Rule 23. See id. Further, the FLSA
“similarly situated” standard is less stringent than the predominance inquiry typically applicable
to class certification disputes under Rule 23(b). 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 (2016).
Proceeding as a collective action furthers several important policy goals. First, the
collective action “allows . . . plaintiffs the advantage of lower individual costs to vindicate rights
by the pooling of resources.” Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989).
Second, “[t]he judicial system benefits by efficient resolution in one proceeding of common issues
of law and fact arising from the same alleged discriminatory activity.” Id.
In an FLSA action, “[t]he district court may use its discretion to authorize notification of
similarly situated employees to allow them to opt into the lawsuit.” Id. at 169. Typically, courts
have utilized a two-phase process in determining whether the proposed plaintiffs are similarly
situated. The first phase takes place at the beginning of discovery, and the second phase occurs
after opt-in forms have been disbursed and returned and discovery has been completed. See
Comer, 454 F.3d at 547.

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The instant case is at the second stage, which courts apply a “stricter standard.” See id.
Named plaintiffs “bear the burden of showing that the opt-in plaintiffs are similarly situated to
the[m].” O'Brien, 575 F.3d at 584 (citation omitted). The second stage follows discovery, so the
Court “has much more information on which to base its decision” and “examine[s] more closely
the question of whether particular members of the class are, in fact, similarly situated.” Comer, 454
F.3d

at

547

(citation

and

internal

quotation

marks

omitted).

To avoid decertification, the named plaintiffs must introduce “substantial evidence” that the optin plaintiffs are similarly situated.” Frye v. Baptist Mem'l Hosp., No. CIV. 07-2708, 2010 WL
3862591, at *2 (W.D. Tenn. Sept. 27, 2010) (citations omitted). At the second stage, “the question
is simply whether the differences among the plaintiffs outweigh the similarities of the practices to
which they were allegedly subjected. Id. at *3.
With the above guidance, the Court turns to the issues in this case. The Defendants assert
that the Supreme Court’s ruling in Tyson compels decertification and that the Plaintiffs cannot
proceed with their representative sample. In addition, the Defendants argue that the Plaintiffs are
not similarly situated. The Court will first address Tyson and whether the Plaintiffs may proceed
with a representative sample and then turn to whether the Plaintiffs are similarly situated.
B.

Tyson Decision

The Defendants primarily rely on Tyson, stating that it precludes any representative
testimony in this case. The Court will first address the Supreme Court’s ruling in Tyson and then
turn to Defendants’ specific arguments regarding representative testimony.
In Tyson, the respondents were employees at Tyson Foods’ pork processing plant. 136
S.Ct. at 1042. The respondents alleged that Tyson Foods (“Tyson”) did not pay some employees
for donning and doffing and did not record the time each employee spent donning and doffing. Id.

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The respondents sought class certification over their state law claims pursuant to Federal Rule of
Civil Procedure 23. With respect to their FLSA claims, they sought certification as a collective
action under 29 U.S.C. § 216. Id. “Since the employees’ claims relate only to overtime, each
employee had to show he or she worked more than 40 hours a week, inclusive of time spent
donning and doffing, in order to recover.” Id. at 1043. The employees relied on representative
evidence, which included employee testimony, video recordings of donning and doffing at the
plant, and a study performed by an industrial relations expert, Dr. Mericle. Id. Dr. Mericle
conducted 744 videotaped observations and analyzed how long various donning and doffing
activities took. Id. He then averaged the time taken and produced estimates of the time it took to
don and doff for each department. Id. Another expert, Dr. Fox, was able to take certain time
records and estimate the amount of uncompensated work each employee did by using Dr. Mericle’s
estimated averages of donning and doffing time. Id. The district court submitted both issues of
liability and damages to the jury, and the jury rendered a verdict for respondents. Id. at 1044. The
Eighth Circuit Court of Appeals affirmed. Id. at 1045.
Before addressing the merits, the Supreme Court noted that the parties did not “dispute that
the standard for certifying a collective action under the FLSA is no more stringent than the standard
for certifying a class under the Federal Rules of Civil Procedure.” Id. The Supreme Court stated
that its opinion assumed, without deciding, that such was correct and stated that for purposes of
the instant action, if certification was proper, then certification of the collective action was also
proper. Id. The Supreme Court continued that in order to be entitled to recovery, each employee
must prove that the amount of time spent donning and doffing, when added to his or her regular
hours, amounted to more than forty hours in a week. Id. Petitioner argued that such inquiries into
individual work time predominate over the common questions. Id. Respondents countered that

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these individual inquiries are unnecessary because it can be assumed each employee donned and
doffed for the same average amount of time observed in Dr. Mericle’s sample. The Supreme Court
stated that whether Respondents’ “inference is permissible becomes the central dispute in this
case.” Id. at 1046.
The Supreme Court agreed with the Respondents, stating, “A representative or statistical
sample, like all evidence, is a means to establish or defend against liability. Its permissibility turns
not on the form a proceeding takes—be it a class or individual action—but on the degree to which
the evidence is reliable in proving or disproving the elements of the relevant cause of action.” Id.
The Supreme Court explicitly declined to establish general rules governing the use of statistical
evidence or representative evidence in all class-action cases. Id. The Supreme Court continued,
“In a case where representative evidence is relevant in proving a plaintiff’s individual claim, that
evidence cannot be deemed improper merely because the claim is brought on behalf of the class.
To so hold would ignore the Rules Enabling Act’s pellucid instruction that use of the class device
cannot “abridge . . . any substantive right.” 28 U.S.C. § 2072(b). Further, the Court reasoned:
In this suit, as in Mt. Clemens, respondents sought to introduce a
representative sample to fill an evidentiary gap created by the
employer’s failure to keep adequate records. If the employees had
proceeded with 3,344 individual lawsuits, each employee likely
would have had to introduce Mericle’s study to prove the hours he
or she worked. Rather than absolving the employees from proving
individual injury, the representative evidence here was a permissible
means of making that very showing.
Id. at 1047.
The Defendants assert that Tyson compels decertification because the Plaintiff’s use of
representative evidence in this case. The Defendants emphasize that in Tyson, the Supreme Court
stated that “[e]ach employee must prove that he actually had unpaid time that resulted in unpaid
overtime, and must prove the amount of his or her allege unpaid time.” [Doc. 280 at 12] (emphasis
9

in Defendants’ Memorandum). The Court disagrees with the Defendants that Tyson compels
decertification here. The question in each case, which the Defendants acknowledge, is whether
the representative or statistical sample is truly reliable in proving or disproving the elements of the
relevant cause of action. Tyson, 136 S. Ct. 1036; see also O'Brien, 575 F.3d 585 (“Furthermore,
it is possible that representative testimony from a subset of plaintiffs could be used to facilitate the
presentation of proof of FLSA violations, when such proof would ordinarily be individualized.”).
The Defendants continue that pursuant to Tyson, each employee must first prove he or she
worked unpaid overtime, when he or she did so, in each week across the years in question. In
addition, the Defendants explain that each Plaintiff must show (1) the alleged uncompensated
activity constituted “work” within the meaning of the FLSA; (2) that the supervisors or managers
were aware of the unpaid work activities; (3) the unpaid work did not constitute a noncompensable
preliminary or postliminary activity; (4) the alleged uncompensated activities, for each workday,
were not de minimis; (5) the weekly determination of the number of uncompensated minutes and
that when added to compensated minutes, exceeded forty hours; (6) and the number of minutes
per day he/she worked off the clock to establish damages. The Defendants appear to take the
position that each opt-in Plaintiff must testify in order to establish the above and that representative
testimony is inappropriate.
The Court finds that the Defendants’ arguments are inconsistent with the Sixth Circuit’s
recent decision in Monroe v. FTS USA, LLC, 860 F.3d 389 (6th Cir. 2017).

As explained in

Monroe, “In FLSA cases, the use of representative testimony to establish class-wide liability has
long been accepted.” Id. at 408. The court continued, “Our sister circuits overwhelmingly
recognize the propriety of using representative testimony to establish a pattern of violations that
include similarly situated employees who did not testify.” Id. The court concluded, “In the face

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of these consistent precedents, many with fact patterns similar to this case, FTS and UniTek point
to no case categorically disapproving of representative testimony to prove employer liability to
those in the collective action who do not testify.” Id. at 409.
With respect to damages in a collective action, courts have also allowed representative
testimony. See id. at 411 (explaining that the “testimony of fairly representative employees may
be the basis for an award of back wages to nontestifying employees”) (quoting U.S. Dep’t of Labor
v. Cole Enters., Inc., 62 F3d 775, 781 (6th Cir. 1995)); Baden-Winterwood v. Life Time Fitness
Inc., 729 F. Supp. 2d 965, 989-92 (S.D. Ohio 2010); Takacs v. Hahn Automotive Corp., No. C-395-404, 1999 WL 33127976, at *1-3 (S.D. Ohio Jan. 25, 1999). If an employer fails to keep
accurate time records, the employees’ burden to prove damages is relaxed. Monroe, 860 F.3d at
399 (citing Mt. Clemens, 328 U.S. at 687). Specifically, the Plaintiffs’ burden was articulated in
Mt. Clemens, in which the Supreme Court stated:
When the employer has kept proper and accurate records the
employee may easily discharge his burden by securing the
production of those records. But where the employer's records are
inaccurate or inadequate and the employee cannot offer convincing
substitutes a more difficult problem arises. The solution, however,
is not to penalize the employee by denying him any recovery on the
ground that he is unable to prove the precise extent of
uncompensated work. Such a result would place a premium on an
employer's failure to keep proper records in conformity with his
statutory duty; it would allow the employer to keep the benefits of
an employee's labors without paying due compensation as
contemplated by the Fair Labor Standards Act. In such a situation
we hold that an employee has carried out his burden if he proves that
he has in fact performed work for which he was improperly
compensated and if he produces sufficient evidence to show the
amount and extent of that work as a matter of just and reasonable
inference. The burden then shifts to the employer to come forward
with evidence of the precise amount of work performed or with
evidence to negative the reasonableness of the inference to be drawn
from the employee's evidence. If the employer fails to produce such
evidence, the court may then award damages to the employee, even
though the result be only approximate.
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Mt. Clemens, 328 U.S. at 687–88; see also Morgan v. Family Dollar Store, Inc., 551 F.3d 1233
(11th Cir. 2008) (“If anything, the Mt. Clemens line of cases affirms the general rule that not all
employees have to testify to prove overtime violations.”).
The Defendants continue that the Plaintiffs cannot make any showing in this case that the
evidence they plan to offer is statistically adequate without admissible expert testimony. In
analyzing Tyson, however, the Sixth Circuit recently observed:
According to FTS, and UniTeK, the failure of TFS Technicians to
present a statistical expert and study was a failure that should have
ended the litigation or prohibited FTS Technicians’ reliance on the
testimony of 17 technicians. Tyson does not impose such a
requirement. The Court’s statement about statistical adequacy was
made in the context of the admissible of representative evidence. . .
. FTS and UniTek do not challenge the admissibility of the
testimony of the 17 technicians, but rather the sufficiency of FTS
Technicians’ representative evidence. And, significantly, Tyson did
not discuss expert statistical studies because they are the only way a
plaintiff may prove an FLSA claim, but because those plaintiffs
offered such a study—along with employee testimony and video
recordings. For our purposes when assessing the sufficiency of the
evidence, the only issue we must squarely decide is whether there
was legally sufficient evidence—representative, direct,
circumstantial, in person, by deposition or otherwise,—to produce a
reliable and just verdict. . . . As will be shown below, FTS
Technicians presented more than sufficient evidence from
representative technicians along with good old-fashioned direct
evidence, which included six managers and supervisors and
documentary proof containing timesheets and payroll records.
Monroe, 860 F.3d at 401 (quotation marks omitted).
The Defendants argue that the Plaintiffs’ purported representative sample is statistically
inadequate. The Defendants continue that the Plaintiffs do not have any admissible proof that the
testimony of their lay witnesses would be statistically adequate to constitute representative
evidence. The Defendants state that the Plaintiffs’ so-called representative evidence must be
sufficient to prove the claims on each of the 167 employees in individual lawsuits.
12

As noted above, courts have consistently allowed the use of representative testimony in
establishing liability and damages in FSLA collective actions. The Defendants continue that the
Plaintiffs “apparently intend to offer the testimony of some undetermined and cherry-picked
number of Plaintiffs from two purportedly randomly selected Samplings Groups of their own
creation.” [Doc. 280 at 20]. The Defendants assert that the Plaintiffs’ exclusive reliance on
anecdotal testimony makes it impossible for the Court to decide liability or damages because the
Plaintiffs cannot introduce enough samples to be accurately extrapolated to the entire class. The
Defendants add that the sample must also be randomly selected from the entire population.
As explained below, the Court finds that the Plaintiffs are similarly situated and that they
may proceed as a collective action. See Monroe, 860 F.3d at 409 (“As Morgan highlights, the
collective-action framework presumes that similarly situated employees are representative of each
other and have the ability to proceed to trial collectively.”). Determining whether the Plaintiffs
have actually presented representative testimony of liability and damages of the collective action
is reserved for trial. By way of illustration, another court was faced with a similar situation.
Takacs, 1999 WL 33127976, at *1-3. In Takacs, the parties disagreed as to whether the plaintiffs
could prove damages in a FLSA action with the testimony of four to six members, along with other
documents and affidavits from nontestifying plaintiffs. Id. at *1. The defendants did not
“challenge the general proposition that damages in FLSA cases may be proved with evidence from
representative testimony,” but rather, the defendants argued that at least one plaintiff from each
location at which plaintiffs were employed must testify. Id.

The court concluded, “Without

having heard the [p]laintiffs’ evidence, it is not possible to determine whether the four to six of
them who will testify will be fairly representative.” Id. at *3. The court stated that if the plaintiffs
propose to prove damages for all of them by using the testimony of only a few, “the law does not

13

prohibit them from attempting to do so.” Id. The court continued that the plaintiffs “bear the risk
[of] failing to establish that the testifying employees are fairly representative.” Id.

The court

noted that “there is no magic formula for the number or percentage of plaintiffs who must testify.”
Id. at *2. The court reasoned, “Our focus is not on the numbers in isolation but on whether the
district court could reasonably conclude that there was ‘sufficient evidence to show the amount
and extent of ... [uncompensated] work as a matter of just and reasonable inference.’” Id. (quoting
Mt. Clemens, 328 U.S. at 690-91); see also Baden-Winterwood, 729 F. Supp. 2d at 997 (“[T]he
question before this Court, is, therefore, whether the two testifying plaintiffs from each job
category are fairly representative of those who did not testify so that the Court can reasonably
conclude that there was sufficient evidence to show the amount and extent of uncompensated work
as a matter of just and reasonable inference.”). Accordingly, while the Court presumes that the
similarly situated employees are representative of each other and have the ability to proceed to
trial collectively, the question of whether the testifying Plaintiffs have presented fairly
representative evidence is a question reserved for trial, after the Court has reviewed such evidence.
Finally, the Defendants argue that Federal Rule of Evidence 602 requires witnesses to have
personal knowledge. The Defendants state that testifying Plaintiffs cannot testify from personal
knowledge about the work actually performed off the clock and the amount of time worked off the
clock for each nontestifying Plaintiff.

The Defendants assert that almost all the Plaintiffs that

were deposed admitted that they do not have personal knowledge of each other’s working hours.
First, the Court finds the Defendants’ objection premature as this issue can be raised at
trial. Second, there is evidence in the record that employees had knowledge of other employees’
hours. See [Doc. 280-7 at 15] (“Deposition of Russell Cooper”) (stating that he could provide an
approximate number of hours other sales representatives worked but that he could not provide a

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definite number of hours). Further, the Defendants’ argument that the testifying Plaintiffs must
provide the amount of time worked off the clock places an impermissible burden on the Plaintiffs
that the Sixth Circuit has cautioned against. See Monroe, 860 F.3d at 412 (“Disapproving of an
estimated-average approach simply due to lack of complete accuracy would ignore the central
tenant of Mt. Clemens—an inaccuracy in damages should not bar recovery for violations of the
FLSA or penalize employees for an employer’s failure to keep adequate records.”); see also
Baden-Winterwood, 729 F. Supp. 2d at 989 (“This standard would, therefore, require dismissal
with prejudice of the nontestifying plaintiffs because none of the testifying witnesses had firsthand knowledge of the amount of hours the nontestifying witnesses worked.

This Court

disagrees.”). Accordingly, the Court finds the Defendants’ arguments not well-taken.
C.

Similarly Situated

As mentioned above, the Sixth Circuit has applied a three-factor test to determine whether
Plaintiffs are similarly situated. O’Brien, 575 F.3d at 584. Specifically, the Court is to analyze
the (1) factual and employment settings of the individual plaintiffs, (2) the different defenses to
which the plaintiffs may be subject to on an individual basis, and (3) the degree of fairness and
procedural impact of certifying the action as a collective action. “Similarly situated” does not
mean that the plaintiffs must be “identically situated.” Monroe, 860 F.3d at 402. Instead, the “the
FLSA is a remedial statute that should be broadly construed.” Id.

As noted above, whether

plaintiffs are similarly situated is a less stringent standard than a Rule 23 analysis. O’Brien, 575
F.3d 584-85.
The Court will now analyze the three O’Brien factors as they apply in this case.
1. Factual and Employment Settings
The first factor directs courts to examine the Plaintiffs’ “job duties, geographic locations,

15

employer supervision, and compensation.” O’Brien, 575 F.3d at 402.
The Defendants argue that this factor weighs in their favor. The Defendants assert that the
Plaintiffs worked at four different locations, they worked in three different sales representatives’
positions, they arrived at work and left work at different times, they clocked in and out during the
day at different times, and they worked different amounts of hours. In addition, the Defendants
assert that the length of sales tours varies from Plaintiff to Plaintiff, the pay varies significantly,
the amount of overtime that the Plaintiffs actually recorded varies significantly, and that the
Plaintiffs allege to have worked off the clock at different times (i.e., before their first tour, after
their last tour, in between tours, and while on tour).
The Court finds that this factor weighs in favor of certification. The Defendants emphasize
limited differences, which really amount to job titles, amount of compensation, hours worked, and
locations. With respect to job titles, the opt-in Plaintiffs have different titles (i.e., Front-Line Sales
Representative, In-House Sales Representative, and Discovery Sales Representative), but as
indicated in the deposition of Dortha Justice-Spilman, the former Regional Director of Human
Resources, all of the different titles were sales representatives, who were employed to make sales.
[Doc. 298-1 at 3-5]. Further, the former Director of Sales and Marketing for the Great Smokies
Lodge, Kyle Smith, explains, “Front line and in house sell timeshares, discovery sells one-year
trial membership.” [Id. at 8]; see also [Id. at 12] (Deposition of John Geissburger, the former
Senior Director of Sales) (explaining that all three types of sales representatives’ duties were to
sell vacation ownerships). All the Plaintiffs were Sales Representatives, employed to make sales,
although to different customers: (1) Front-Line Sales Representatives sell to individuals who do
not currently have a timeshare; (2) In-House Sales Representatives sell to individuals who already
own a timeshare; and (3) Discovery Sales Representatives sell trial packages. See [Id. at 14]

16

(Deposition of Matt Chodak, the current Vice President of Sales and Marketing) (explaining the
same). The Defendants acknowledge in their Memorandum that Front Line Sales Representatives
sell to the general public; In-House Sales Representatives sell to current owners; and Discovery
Sales Representatives sell trial packages to individuals who have declined to purchase a deeded
timeshare from a Front-Line or In-House Representative. [Doc. 280 at 8-9]. In summary, each
Plaintiff was a Sales Representative, but the clientele was different. Accordingly, the Court finds
the different titles within the Sales Representatives are not grounds to decertify this action.
Further, the Defendants assert that the Plaintiffs worked at different locations. The Court
finds that the different locations in this case do not prohibit the Plaintiffs from proceeding as a
collective action. Here, the hierarchy of management was similar at the locations. For instance,
Kyle Smith testified as follows:
A sales rep reported to a sales manager. A sales manager reported to
a senior manager. A senior manager reported to the director of sales.
A director of sales reported to the vice president. And then the vice
president reported to the area president. Above that it went to, the –
the area vice president reported to the executive vice president over
that area. And then the executive vice president report to, I forget
the exact title, but the guy over all sales and marketing companywide. And then he reported to the CEO of the company.
[Doc. 298-3 at 6]; see also [Id. at 3] (Deposition of Dortha Justice-Spilman) (explaining a similar
hierarchy, except at the Smokies that was an elevated manager due to the high volume of sales).
The Defendants also highlight testimony regarding pay differences. See [Doc. 134]
(Declaration of Mandi Benson). While the Court acknowledges the pay differences, the Court also
notes that such pay differences are not attributed to a different compensation method. Instead, all
Plaintiffs were paid using the same method (i.e., commissions). For instance, Kyle Smith testified
that during January 1, 2009, to December 31, 2013, the Sales Representatives would receive
commissions only in the event of a successful sale and that if they were not successful in making
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a sale, the Sales Representatives’ only compensation would be the hourly rate. [Doc. 298-2 at 67]. Mr. Smith further explained, “[Y]ou cannot limit it to that week. So draw is 100 percent draw,
so if I go a month and a half without a sale and then I finally start getting sales, everything from
the beginning is recoverable on your hourly, not just for that week.” [Id. at 7]. Because the
Plaintiffs were paid using the same method, the Court finds that the difference in the amount of
compensation earned by the Plaintiffs is not a ground to decertify.
The Defendants further argue that the hours worked and the hours recorded vary from each
opt-in Plaintiff. The Defendants point to several deponents that testified they worked different
hours and arrived and departed at different hours. See [Doc. 280-3 at 12] (Deposition of Kisa
Abbott) (stating that Wyndham expected employees to arrive at 8:30 a.m. but that she typically
left anywhere from 5:00 p.m. to 8:00 p.m.); [Id. at 12] (Deposition of Craig Carson) (stating that
all sales representatives came to work at 8:00 but left at different times depending on whether
there was an appointment with a potential purchasers); [Id. at 17] (Deposition of Danny Chappell)
(stating that everyone had to be there for the sales meeting in the morning but “other than that,
there was no typical day” and that he arrived at 8:15); [Id. at 20-21] (Deposition of Russell Cooper)
(arrived at 8:30 a.m. and left at different times); see generally [Id. at 1-3] (Summary of Deponents’
Testimony).
The Court finds that while hours varied, such differences are insignificant because the
Plaintiffs’ claims are unified by common theories of Defendants’ statutory violations, even if the
proofs of these theories are inevitably individualized and distinct. See O’Brien, 575 F3d at 585
(explaining that plaintiffs are similarly situated where their claims are “unified by common
theories of defendants’ statutory violations, even if the proofs of these theories are inevitably
individualized and distinct”). Here, the Plaintiffs have testified that they worked overtime, see

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[Doc. 298-4 at 1-3], that the managers would not let them stay on the clock after 40 hours, although
they continued working, see [Doc. 298-5 at 1-4], and that if they did stay on the clock after 40
hours, the time would be adjusted, see [Doc. 298-6 at 1-2], or that time was adjusted to reflect
breaks that were not taken. [Id.]. The Plaintiffs have, therefore, identified the methods in which
the Defendants allegedly violated the FLSA: requiring them to work off the clock, denying them
overtime, and altering time records. See Monroe, 860 F.3d at 403 and O’Brien, 575 F.3d at 57273.
The Court acknowledges that how the Defendants’ allegedly performed the above
violations varied. Compare [Doc. 298-5 at 7] (Deposition of Kisa Abbott) (testifying that a
manager told her to not clock in and out); [Id. at 28] (Deposition of James Campbell) (testifying
that his managers said that if he did not clock out, he could not take the tour); [Id. at 41-42]
(Deposition of Alana Cheij) (discussing clocking out for lunch, although she was still working)
[Id. at 46-47] (Deposition of Russell Cooper) (discussing “shaved time” and that his manager
would clock him out or put in a break here or there to ensure that the records reflected no overtime
because it was not allowed). However, as the Sixth Circuit in Monroe explained:
The dissent asserts that FTS Technicians allege “distinct” violations
of the FLSA and “define the company-wide ‘policy’ at such a lofty
level of generality that it encompasses multiple policies.” (Dis. at
418.) The definition of similarly situated does not descend to such a
level of granularity. The Supreme Court has warned against such a
“narrow, grudging” interpretation of the FLSA and has instructed
courts to remember its “remedial and humanitarian” purpose, as
have our own cases. See Tenn. Coal, Iron & R.R. Co., 321 U.S. at
597, 64 S.Ct. 698; Keller, 781 F.3d at 806; Herman, 308 F.3d at 585.
Many FLSA cases do focus on a single action, such as the donning
and doffing cases that the dissent's reasoning would suggest is the
only situation where representative proof would work. But neither
the statutory language nor the purposes of FLSA collective actions
require a violating policy to be implemented by a singular method.
The dissent cites no Sixth Circuit case that would compel employees
to bring a separate collective action (or worse, separate individual
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actions) for unreported work required by an employer before
clocking in, and another for work required after clocking out, and
another for work required during lunch, and yet another for the
employer's alteration of its employees' timesheets. Such a narrow
interpretation snubs the purpose of FLSA collective actions.
But FTS Technicians' claims do not depend on “lawyer talk”; they
are based on abundant evidence in the record of employer mandated
work off the clock. That an employer uses more than one method to
implement a company-wide work “off-the-clock” policy does not
prevent employees from being similarly situated for purposes of
FLSA protection. This is not a new concept to our court or to other
courts. In accordance with O'Brien, we have approved damages
awards to FLSA classes alleging that employers used multiple
means to undercompensate for overtime.
Monroe, 860 F.3d at 403. Accordingly, the Court finds that the Plaintiffs’ factual and employment
settings support certification.
2. Individualized Defenses
The Defendants assert that there are “a number of individualized defenses with facts unique
to each Plaintiff or applicable only to certain Plaintiffs.” [Doc. 280 at 32]. The Defendants state
that whether down time is compensable is an individualized defense that depends on the
circumstances. The Defendants cite to two Plaintiffs’ depositions stating that they clocked out
during the day between tours. In addition, the Defendants cite two other Plaintiffs’ depositions,
stating that “[t]hey also testified to engaging in a variety of activities while clocked out including
eating, leaving the site, training, and listening to other sales pitches.” [Doc. 280 at 33]. The
Defendants also explain that Jesse Peirce was accused of taking inappropriate photographs, but he
said he was playing a video game. The Defendants state that either way, such time was not
compensable. The Plaintiffs respond that the Defendants’ Amended Answer predominately asserts
class-wide defenses.
“Several circuits, including our own, hold that individualized defenses alone do not warrant

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decertification where sufficient common issues or job traits otherwise permit collective litigation.”
Monroe, 860 F.3d at 404. Furthermore, one court has already considered whether the defense of
downtime favors decertification. See Bitner v. Wyndham Vacation Resorts, Inc., No. 13-CV-451,
2016 WL 7480428, 14 (W.D. Wis. Dec. 29, 2016). In Bitner, the court stated as follows:
[T]here is nothing particularly unique or individualized to the
question whether Discovery Sales Representatives were entitled to
compensation during downtime between meetings with customers.
On the contrary, this is just a subset of the class issue that the court
has already certified—i.e., was an unofficial policy adopted that
required Discovery Sales Representatives to wait for the next
potential customer.
Id. Further, the Defendants only point to three Plaintiffs that were clocked out and were not
engaged in work activities, in support of their defense. The Court is not going to decertify this
action based on three Plaintiffs. Moreover, similar to the testimony in Bitner, there is evidence in
the record that the Plaintiffs were not allowed to leave when expecting a tour. [Doc. 298-5 at 175]
(Deposition of Roy Neuenschwander) (“Yeah, I was told to clock out when I wasn’t on tour but I
wasn’t allowed to leave.”).

Accordingly, the Court finds the Defendants’ argument not well-

taken.
3. Degree of Fairness and Procedural Impact
The Defendants argue that failing to decertify the conditionally certified collective action
will unfairly and prejudicially require the Defendants to prepare for and present 167 different trials
simultaneously. The Defendants assert that given the wide variety of individual issues raised by
the Plaintiffs’ claims and the individualized nature of the defenses, fairness and procedural
considerations dictate that this case should not proceed as a collective action.
The Plaintiffs respond that the claims presented here can be adjudicated far more efficiently
in a single collective proceeding than in 159 individualized trials in which evidence of the same

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violations would be presented over and over again. The Plaintiffs state that Defendants’ rights
must be balanced with the Plaintiffs rights to have their day in Court, many of whom would not be
able to bear the costs of an individual suit. Further, the Plaintiffs argue that proceeding in a
collective manner comports to the remedial and humanitarian purposes of the FLSA.
The Court agrees with the Plaintiffs. Here, there are approximately 156 Plaintiffs alleging
a common, FLSA violating policy (i.e., working off the clock and time sheets being altered so as
to not accrue overtime), and “[t]he judicial system benefits by efficient resolution in one
proceeding of common issues of law and fact.” Monroe, 860 F.3d at 405 (quoting Hoffman-La
Roche, Inc., 493 U.S. at 170).

As stated in Wilks v. Pep Boys, “Congress, in seeking to allow

plaintiffs to vindicate their rights under the FLSA, provided them with the opportunity to do so
collectively when appropriate.” No. 3:02-0837, 2006 WL 2821700, at *8 (M.D. Tenn. Sept. 26,
2006), aff'd, 278 F. App'x 488 (6th Cir. 2008). Accordingly, the Court finds that the “decision to
allow the plaintiffs to proceed collectively is in line with Congress's determination that defendants
will not always have the opportunity to pursue individual defenses against FLSA plaintiffs but,
instead, must collectively defend a suit that is so pursued.” See id.
IV.

CONCLUSION
Accordingly, for the reasons stated above, the Defendants’ Motion to Decertify the

Conditionally Certified Collective Action [Doc. 279] is DENIED. This action shall proceed on
October 10, 2017, as a collective action.
IT IS SO ORDERED.
ENTER:
s/ C. Clifford Shirley, Jr.
United States Magistrate Judge

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