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

Filing 84

MEMORANDUM AND ORDER. It is Ordered, for the reasons stated in the Report and Recommendation, which the Court adopts and incorporates into this ruling, that the Plaintiff's motion, [Doc. 33], is Granted. Signed by District Judge Pamela L Reeves on 8/21/14. (JBR) (c/m) Modified text on 8/21/2014 (JBR).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESEE
AT KNOXVILLE

Jesse Pierce and Michael Pierce,
on behalf of themselves and others
similarly situated,
Plaintiffs,
v.
Wyndham Vacation Resorts, Inc., and
Wyndham Vacation Ownership, Inc.,
Defendants.

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Case No.: 3:13-CV-641-PLR-CCS

Memorandum and Order
This matter is before the Court for consideration of the defendants’ objections, [Doc. 73],
to the Report and Recommendation filed by United States Magistrate Judge C. Clifford Shirley
recommending the Court conditionally certify the plaintiffs’ collective action under the Fair
Labor Standards Act. [Doc 70]. The plaintiffs have responded in opposition to the defendants’
objections. [Doc. 74].
The defendants object to the Report and Recommendation because, they contend, the
Magistrate Judge failed to cite any “common theory of defendants’ statutory violations” to
support the finding that the named plaintiffs are similarly situated to the putative class members.
Additionally, the defendants argue to the extent the Report and Recommendation relies on
evidence the plaintiffs presented for the first time in their reply memorandum, reliance on such
evidence is improper and unfair to the defendants. 1

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The defendants later filed a supplemental brief in support of their objection to the Report and Recommendation
citing a Florida case where the magistrate recommended denying class certification. To the extent this supplemental
brief makes objections beyond the two raised in the defendants’ original objections to the Report and

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As required by 28 U.S.C. § 636(b)(1), the Court reviews the portions of the Report and
Recommendation to which the defendants object de novo. For the reasons that follow, the Court
finds itself in agreement with the Magistrate Judge’s analysis of the legal issues, and the
defendants’ objections will be overruled. The Report and Recommendation will be accepted in
whole, and the underlying motion for conditional certification will be granted.
1. Common theory of defendants’ statutory violations
The defendants’ first objection relates to the magistrate judge’s failure to cite a “common
theory of defendants’ statutory violations.”

However, no such finding is necessary for

conditional certification. In O’Brien v. Ed Donnelly Enters. Inc., the Sixth Circuit stated that
potential plaintiffs can be found to be “similarly situated” based on a variety of factors
“including the factual and employment settings of the individual plaintiffs, the different defenses
to which the plaintiffs may be subject on an individual basis, and the degree of fairness and
procedural impact of certifying the action as a collective action.” 575 F.3d 567, 584 (6th Cir.
2009) (internal punctuation omitted). The standard for certification is “fairly lenient” and only
requires “a modest factual showing” that the plaintiff is similarly situated to the potential class.
Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 547 (6th Cir. 2006).

The Sixth Circuit

specifically noted that showing a “unified policy” of violations is not required. Id. (citing
Grayson v. K Mart Corp., 79 F.3d 1086, 1095 (11th Cir. 1996)).
The Magistrate Judge held that the plaintiffs were similarly situated because the
purported class was classified as non-exempt, “[t]hey operated under the same compensation
system and were all required to record their compensable time using the same system,” and they
“all operated under the same management structure and supervision.” Because no common

Recommendation, [R. 73], they are untimely as not being raised within 14 days of receiving the Report and
Recommendation. Fed. R. Civ. P. 72.

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theory of statutory violations is necessary, the defendants’ “common theory” objection will be
overruled.
2. Evidence first presented in plaintiffs’ reply
The defendants also object to the Magistrate’s reliance on evidence submitted with the
plaintiffs’ reply brief. The plaintiffs offered a number of declarations attached to their reply that
were not introduced before. The defendants contend that reliance on these declarations is
improper and they should have been disregarded by the Court. However, the defendants waived
their objection by not raising it in a timely manner. The defendants did not move to strike the
declarations submitted with the plaintiffs’ reply brief, nor did they raise any other kind of
objection until after the Magistrate Judge entered the Report and Recommendation. Because the
defendants failed to raise a timely objection, their objection will be overruled.
Conclusion
After a careful review of the record and the parties’ pleadings, this Court is in agreement
with the Magistrate Judge’s recommendation that the Plaintiff’s motion for conditional
certification of this matter as a collective action and approval of 29 U.S.C. § 216(b) notice be
granted. Accordingly, the Court Accepts In Whole the Report and Recommendation under 28
U.S.C. §636(b)(1) and Fed.R.Civ.P. 72(b). The defendants’ objections, [Doc. 73], are overruled.
It is Ordered, for the reasons stated in the Report and Recommendation, which the Court adopts
and incorporates into this ruling, that the Plaintiff’s motion, [Doc. 33], is Granted, and:
1. This case shall be conditionally certified as a collective action for current and former,
non-exempt, commission-paid: (1) Front Line Sales Representatives, (2) In-House
Sales Representatives; and (3) Discovery Sales Representatives – who were employed
in Wyndham’s Tennessee Resorts between October 21, 2010 and October 31, 2013;

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2. Wyndham is Ordered to produce the names, addresses, and dates of employment for
all persons potentially covered by the collective action within twenty (20) days of the
entry of this order; and
3. The plaintiffs are Ordered to file their purposed notice and opt-in form within five
(5) days, and Wyndham will be permitted to respond or file a competing notice and
opt-in form within five (5) days of the plaintiffs’ filing.
It is so Ordered.

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