Reeser v. Bluegreen Vacations Unlimited, Inc. et al
ORDER accepting and adopting 41 Report and Recommendations; granting in part and denying in part 27 Motion to Certify Class. Signed by District Judge Harry S Mattice, Jr on 8/25/17. (aws, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
WHITNEY PAXTON, et al.,
UNLIMITED, et al.,
Case No. 3:16-cv-523
Magistrate Judge Guyton
On July 27, 2017, United States Magistrate Judge H. Bruce Guyton filed his Report
and Recommendation, (Doc. 41), pursuant to 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b),
and the Court’s Referral Order (Doc. 29). Therein, Magistrate Judge Guyton recommends
that Plaintiff’s Motion to Conditionally Certify Collective Action and Facilitate Notice to
Potential Class Members, (Doc. 27), be granted in part and denied in part. (Doc. 41 at 14).
Defendants filed timely objections on August 10, 2017. (Doc. 42). The Court has
conducted a review of the Report and Recommendation, as well as the entire record
related to this matter, and it agrees with Magistrate Judge Guyton’s well-reasons
conclusions. Accordingly, the Court will ACCEPT and ADOPT Magistrate Judge
Guyton’s Report and Recommendation, and Plaintiff’s Motion, (Doc. 27), will be
GRANTED in part and DENIED in part as outlined herein.
The Parties have not objected to the Magistrate Judge’s recitation of the facts and
the Parties’ respective positions, and the Court concludes that it is accurate. The pertinent
facts as summarized by Magistrate Judge Guyton are as follows:
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The Complaint [Doc. 1] in this case was filed on August 24, 2016. The
Complaint alleges violations of the Fair Labor Standards Act of 1938
(“FLSA”). In addition, Plaintiff Whitney Paxton states that she was
unlawfully terminated after complaining to the Defendants about their
failure to pay wages in violation of § 215(a) of the FLSA. Id. at ¶ 1. The
Complaint alleges that the Plaintiffs were either formerly employed, or
remain employed, by the Defendants as nonexempt employees. Id. at ¶ 2.
The Complaint states that the Plaintiffs worked as In-House Sales
Representatives and/or Front Line Sales, or similar positions with duties
and responsibilities, including selling and promoting time-share interest.
Id. at ¶ 3. The Complaint contends that during the three-year period prior
to filing the Complaint, the Defendants committed violations of the FLSA
by requiring and/or suffering and/or permitting its employees to work in
excess of forty (40) hours per week without receiving earned compensation,
including overtime pay as required by law. Id. at ¶ 4. The Complaint
continues that the Defendants did not pay the Plaintiffs for all hours
worked. Id. Further, the Complaint states that the Defendants contracted
with the Plaintiffs, as a term and condition of their employment, to pay for
all hours worked based on the legally appropriate hourly rate of pay,
including overtime. Id. In addition, the Complaint alleges that during the
three-year period prior to the filing of the Complaint, the Defendants
required the Plaintiffs to adjust their hours so that the Plaintiffs would not
be paid overtime. Id. at ¶ 5. The Complaint states that the Defendants also
required the Plaintiffs to sign documentation reducing their hours of work
and that the Defendants required the Plaintiffs to work off-the-clock. Id. In
summary, the Complaint alleges violations of the FLSA, breach of contract,
and retaliatory discharge of Plaintiff Wendy Paxton. Id. at ¶¶ 15-26 . . .
The Plaintiffs move [Doc. 27] for an order conditionally certifying this case
as a collective action. In addition, the Plaintiffs request an implementing
procedure, whereby prospective opt-in plaintiffs will be notified of
Plaintiffs’ FLSA claims and be given an opportunity to join the collective
action. Specifically, the Plaintiffs state that the collective action will consist
of Sales Representatives employed by Defendant Bluegreen Vacations
Unlimited, Inc., (“Bluegreen”) at its Pigeon Forge, Gatlinburg, and Orlando,
Florida locations within the last three years. The Plaintiffs assert that there
are common questions of law or fact to all the Sales Representatives. The
Plaintiffs argue that the Defendants employ similarly situated Sales
Representatives who were or are paid under the same pay practices that
were applicable to all Sales Representatives within the defined class. The
Plaintiffs contend that district courts often conditionally certify similar
cases. Further, the Plaintiffs claim that courts do not consider factual
disputes, the merits of the claim, discovery, or individualized defenses. The
Plaintiffs assert that the proposed class notice is accurate and should be
mailed, emailed and posted at Defendant Bluegreen’s locations. Further,
the Plaintiffs assert that notice should be sent to class members within a
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three-year statute of limitations and that the Court should order the
Defendants to provide contact information for the class members.
The Defendants respond [Doc. 31] that the Plaintiffs have not identified a
single policy that even arguably violates the FLSA. Further, the Defendants
argue that the Plaintiffs’ evidence of being similarly situated is insufficient.
The Defendants explain that the Plaintiffs fail to identify a common theory
of liability, they fail to identify a common decision maker, and they provide
no evidence regarding current Bluegreen employees. Further, the
Defendants assert that the Plaintiffs and the declarants are not similarly
situated and that their claims are not suited for collective treatment. With
respect to the proposed notice, the Defendants assert that the notice and
consent are deficient and misleading. Finally, the Defendants assert that
only one form of notice is appropriate and that the Plaintiffs are not entitled
to putative collective members’ social security numbers.
The Plaintiffs’ Reply [Doc. 32] argues that they were all required to under
report their actual hours worked and that each Plaintiff avers they worked
far in excess of forty hours each workweek that they were employed.
Further, they submit that they have provided sufficient evidence of being
similarly situated. Finally, the Plaintiffs suggest that the parties confer and
resolve all the issues related to the proposed notice.
On the Court’s invitation, the parties submitted supplemental briefs after
the hearing on this matter. In the Plaintiffs’ Supplemental Brief [Doc. 37],
they state that the Court should certify a class, including Front-Line Sales
Representatives. The Plaintiffs aver that Front-Line Sales Representatives
are similarly situated and that the Defendants have only argued minor
variations between In-House Sales Representatives and Front-Line Sales
Representatives. Further, the Plaintiffs assert that the Florida Sales
Representatives [hereinafter “Florida Employees”] should be included in
the collective action because they are similarly situated. The Plaintiffs also
assert that the Court has the option to conditionally certify a class that
The Defendants filed a Supplemental Response [Doc. 38], asserting that the
Florida employees should not be included in any collective action. The
Defendants argue that convenience is the only basis articulated by the
Plaintiffs for the effort to expand this action. The Defendants assert that the
Florida employees are not similarly situated to the employees in Tennessee.
In addition, the Defendants contend that the Florida employees do not
identify a violation of the FLSA and that inclusion of the Florida employees
is procedurally inappropriate. Further, the Defendants argue that FrontLine Sales Representatives should not be included in any collective action.
The Defendants submit that neither named Plaintiff worked as a Front-Line
Sales Representative during the statute of limitations period for this action.
The Defendants also state that the Plaintiffs have not submitted any
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evidence related to Front-Line Sales Representatives in Tennessee. Finally,
the Defendants assert that the Plaintiffs’ reliance on the Wyndham cases is
(Doc. 41 at 2–5) (footnotes omitted).
STANDARD OF REVIEW
District Courts review de novo the portions of a Report and Recommendation to
which timely objections are filed. Fharmacy Records v. Nassar, 465 F. App’x 448, 456
(6th Cir. 2012).
Defendants object to Magistrate Judge Guyton’s findings that the Florida
Employees and the Front-Line Sales Representatives should be part of the conditionally
certified class. Defendants also argue that the Report and Recommendation improperly
relies on Monroe v. FTS USA, LLC, 860 F.3d 389 (6th Cir. 2017). (See generally Doc. 42).
Each objection will be discussed in turn.
Defendant first argues that the Florida Employees should not be part of the
conditionally certified class because (1) they are not similarly situated to the Tennessee
Employees; (2) their allegations of FLSA violations are “inconsistent;” and (3) “fairness
and procedural impact” dictate that inclusion of the Florida Employees is improper. (Doc.
42 at 2–6). All of these arguments, however, were presented to and rejected by Magistrate
Judge Guyton. (Compare Doc. 42 at 2–6 with Doc. 31 at 14–16 and Doc. 38 at 1–4). It is
well-established that objections that merely restate arguments previously presented are
without merit and may be denied summarily. VanDiver v. Martin, 304 F. Supp. 2d 934,
937 (E.D. Mich. 2004) (“A general objection, or one that merely restates the arguments
previously presented is not sufficient to alert the court to alleged errors on the part of the
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magistrate judge. An ‘objection’ that does nothing more than state a disagreement with a
magistrate’s suggested resolution, or simply summarizes what has been presented before,
is not an ‘objection’ as that term is used in this context.”). Accordingly, Defendants’
Objection with regards to the Florida Employees will be OVERRULED.1
Front-Line Sales Representatives
Next, Defendants claim that the Report and Recommendation erroneously found
that Front-Line Sales Representatives should be included in the conditionally certified
class. (Doc. 42 at 6–7). Specifically, Defendants argue that Front-Line Sales
Representatives are not similarly situated to In-House Sales Representatives and that
Plaintiffs “have not presented evidence regarding Front-Line Sales Representatives in
Tennessee during the statute of limitations period.” (Id. at 6).
Defendants’ arguments regarding the dissimilarities between job functions of
Front-Line Sales Representatives and In-House Sales Representatives are, again, merely
recycled arguments that have already been rejected by Magistrate Judge Guyton.
(Compare Doc. 38 at 4–6 with Doc. 42 at 6–7). Even if this objection were properly
Briefly, the Court notes that Magistrate Judge Guyton properly found that the lack of common supervisors
between the Florida Employees and the Tennessee Employees is not fatal to conditional certification.
Plaintiffs have alleged that both the Florida and Tennessee Employees were instructed by their respective
supervisors that they were not to report, and consequently would not be paid for, hours worked in excess of
forty per week. To require that Plaintiffs in different states share the same supervisor to bring a collective
action would defeat the remedial purpose of the FLSA. Moreover, it does not appear to the Court that the
Florida Employees have raised “inconsistent” allegations of FLSA violations. They all claim that they
worked in excess of forty hours per week at the direction of their supervisors. Their failure to specify exactly
how Defendants managed to make it appear that they worked forty or fewer hours per week is not
dispositive at this stage. See, e.g., Monroe v. FTS USA, LLC, 860 F.3d 389, 403 (6th Cir. 2017) (“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 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.”); see also id. (“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.”). The Monroe decision will be discussed in greater detail infra Part III.C.
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presented, the Court would find it meritless. The differences in job functions between
Front-Line Sales Representatives and In-House Sales Representatives that Defendants
cite are de minimis and at times contrived. Such employees perform essentially the same
function—selling time shares. In short, Plaintiffs have satisfied their burden at this early
stage to show that they are similarly situated to the employees they seek to notify of this
action. See, e.g., Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546–47 (6th Cir. 2006)
(noting that, at the conditional certification stage, “[t]he plaintiff must show only that ‘his
position is similar, not identical, to the positions held by the putative class members.’”
(quoting Pritchard v. Dent Wizard, Int’l, 210 F.R.D. 591, 595 (S.D. Ohio 2002))). This
determination is of course by no means final, as Defendants may move to decertify the
class at the close of discovery. Id.
Defendants also argue that Front-Line Sales Representatives should not be
included in the conditionally certified class because “[t]he only evidence from Front-Line
Sales Representatives comes from the declarations from the Florida [E]mployees.
However, as discussed previously, Florida [E]mployees should not be included in the
conditionally certified class.” (Doc. 42 at 7). Because the Court has already rejected
Defendants’ arguments regarding the Florida Employees, see supra Part III.A,
Defendants’ Objection regarding the Front-Line Sales Representatives will be
2 Defendant is also simply incorrect that Plaintiffs have failed to provide information about Front-Line Sales
Representatives in Tennessee. For example, Plaintiff Whitney Paxton, a Tennessee Employee, declared that
over [her] seventeen (17) years with Bluegreen [she] worked as a front-line sales
representative, in-house sales representative and a sales specialist. Ultimately, the primary
duty of these jobs included selling time share units to customers. The main difference is
what stage of the sales process the representative is involved. Ultimately, the primary job
duty is the same: make a sale and close the time share.
(Doc. 28-3 at 2).
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Monroe v. FTS USA, LLC
Finally, Defendants argue that Magistrate Judge Guyton mistakenly relied on
Monroe v. FTS USA, LLC, 860 F.3d 389 (6th Cir. 2017), to reach his conclusions. (Doc.
42 at 7–9). The Court has reviewed Magistrate Judge Guyton’s Report and
Recommendation, as well as the Monroe decision, and finds Defendants’ arguments
misplaced. First, Defendants grossly mischaracterize the extent to which Magistrate
Judge Guyton relied on Monroe, which is only discussed in two paragraphs of the
fourteen-page Report and Recommendation—hardly the hallmark of heavy reliance.3
(Doc. 41 at 9–10). Second, Defendants merely argue that Monroe is factually
distinguishable from the instant case. (Doc. 42 at 7–9). Such an argument is of little value,
however, because Monroe was decided with the benefit of full discovery. Monroe, 860
F.3d at 393. Here, Plaintiffs have not had the same opportunity to develop a factual
record. Moreover, this case is not as distinguishable as Defendants would lead the Court
to believe. As in Monroe, Plaintiffs in the instant action complain that they were directed
by their supervisors, in one fashion or another, to underreport their time. (See generally
Docs. 28-3, 28-4, 28-5, 28-6, 28-7); Monroe, 860 F.3d at 394 (“Managers told or
encouraged technicians to underreport time or even falsified timesheets themselves.”).
Furthermore, the Court has already rejected Defendants’ arguments that (1) Plaintiffs’ job
functions are not sufficiently similar and (2) the lack of common supervisors between the
Florida Employees and the Tennessee Employees is determinative of their cause. See
supra Parts III.A and III.B. The Court will not permit Defendants to relitigate these
3 To make matters worse, one of these two paragraphs only discusses propositions of law announced in
Monroe. (Doc. 41 at 10). Defendants’ attempt to distinguish the facts of Monroe from the present case,
therefore, amount to an attack on a single paragraph of Magistrate Judge Guyton’s Report and
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arguments under the guise of distinguishing the facts of this case from those of Monroe.
It bears repeating, however, that Defendants will have an opportunity to move to decertify
the class at the close of discovery. Comer, 454 F.3d at 546–47.
Defendants’ objection regarding the Report and Recommendation’s reliance on
Monroe, therefore, will be OVERRULED.
For the reasons stated herein,
Defendants’ Objections to Magistrate Judge Guyton’s
Recommendation, (Doc. 42), are hereby OVERRULED;
Magistrate Judge Guyton’s Report and Recommendation, (Doc. 41), is hereby
ACCEPTED and ADOPTED;
Plaintiffs’ Motion to Conditionally Certify Collective Action and Facilitate Notice
to Potential Class Members, (Doc. 27), is hereby GRANTED in part and
DENIED in part;
This case is hereby CONDITIONALLY CERTIFIED for current and former,
non-exempt, commission paid (1) Front-Line Sales Representatives, (2) In-House
Sales Representatives, and (3) In-House Sales Specialists at Bluegreen’s Sevier
County and Orlando, Florida locations during the three years preceding the filing
of the date of this Complaint;
Bluegreen is hereby ORDERED to produce the names, addresses, and dates of
employment for all persons potentially covered by the collective action within
twenty (20) days of entry of this Order; and
If the Parties have not reached an agreement regarding the notice and opt-in forms
by the date of entry of this Order, Plaintiffs are hereby ORDERED to file their
proposed notice and opt-in form within five (5) days of the date of entry of this
Order, and Defendants are hereby ORDERED to respond or file a competing
notice and opt-in form within five (5) days of the Plaintiffs’ filing.
SO ORDERED this 25th day of August, 2017.
/s/ Harry S. Mattice, Jr._____
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE
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