Parker et al v. Silverleaf Resorts, Inc. et al
Memorandum Opinion and Order: The Court GRANTS Plaintiffs' 116 Motion for FLSA Conditional Certification but limits Plaintiffs' proposed class definition. The Court DENIES Defendants' 122 Motion to Strike. The Court ORDERS Defenda nts to produce the Employee Information no later than 5/17/2017. The parties are further ORDERED to confer and submit an agreed Proposed Notice form as well as an agreed Proposed Consent to Join Form no later than 5/15/2017. The opt-in period will last until 60 days following the date Defendants produce the Employee Information. (Ordered by Judge Jane J. Boyle on 5/1/2017) (rekc) Modified linkage on 5/1/2017 (rekc).
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
JAMES PARKER, CAITLIN COLLINS,
TAYLOR JACKSON, and ZACHARY
OWENS, on behalf of themselves and
others similarly situated,
SILVERLEAF RESORTS, INC.,
MANAGEMENT L.P., SL RESORT
HOLDINGS, INC., ORANGE LAKE
COUNTRY CLUB, INC., and
ORANGE LAKE HOLDINGS, LLLP,
CIVIL ACTION NO. 3:14-CV-2075-B
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiffs’ Motion for FLSA Conditional Certification. Doc. 116. Also
before the Court is Defendants’ Opposed Motion to Strike Declarations File in Support of Plaintiffs’
Motion for FLSA Conditional Certification. Doc. 122. For the following reasons, the Court
GRANTS Plaintiffs’ Motion (Doc. 116) but limits Plaintiffs’ proposed class definition as described
below. And the Court DENIES Defendants’ Motion (Doc. 122).
This is a Fair Labor Standards Act (FLSA) case brought by four former employees of
Silverleaf Resorts, Inc. (Silverleaf) who allege that they were wrongfully denied overtime
compensation and minimum wages. Doc. 91, Pls.’ 3d Am. Compl. ¶¶ 3, 5–6, 8–9. Silverleaf is in the
business of developing, marketing, and operating timeshare resorts in various markets nationwide.2
Id. ¶ 19. Before May 2011, Silverleaf operated as a stand-alone company. See id. ¶ 20. In May 2011,
however, it was acquired by SL Resort Holdings, Inc. (SL Holdings), a wholly-owned subsidiary of
Cerberus Capital Management L.P. (Cerberus). Id. For four years, Silverleaf operated directly under
SL Holdings and Cerberus, but in May 2015, Silverleaf was acquired by Orange Lake Country Club,
Inc., a wholly-owned subsidiary of Orange Lake Holdings, LLLP (collectively Orange Lake). Id. ¶ 22.
While working as employees of Silverleaf, Plaintiffs assert they held similar jobs to one
The Court draws its factual account from the allegations contained in Plaintiffs’ Third Amended
Complaint (Doc. 91) and from the parties’ briefing on the Motion for FLSA Conditional Certification before
the Court. Contested facts will be noted as such.
Plaintiffs contend that Defendants’ resorts consist of: (1) Apple Mountain Resort in Clarksville,
Georgia; (2) Fox River Resort in Sheridan, Illinois; (3) Holly Lake Resort in Hawkins, Texas; (4) Lake O’ The
Woods Resort in Flint, Texas; (5) Piney Shores Resort in Conroe, Texas; (6) The Villages Resort in Flint,
Texas; (7) Timber Creek Resort in De Soto, Missouri; (8) Hill Country Resort in Canyon Lake, Texas;
(9) Holiday Hills Resort in Branson, Missouri; (10) Oak N’ Spruce Resort in South Lee, Massachusetts;
(11) Orlando Breeze Resort in Davenport, Florida; (12) Ozark Mountain Resort in Kimberling City, Missouri;
and (13) Seaside Resort in Galveston, Texas. Doc. 116, Pls.’ Mot. for Certification 4. In Defendants’
Response, however, they state that there are nine Silverleaf resorts but give no explanation for the
discrepancy. See Doc. 120, Defs.’ Resp. to Pls.’ Mot. for Certification 1 [hereinafter Defs.’ Resp.]. Defendants
do not list (1) Holly Lake Resort; (2) Lake O’ The Woods Resort; (3) Timber Creek Resort; or (4) Ozark
Mountain Resort. See id. at 4. The Court need not resolve this discrepancy because as discussed below, the
Court conditionally certifies a class but does not include every resort in the definition. The resorts that are
included are not inconsistent with the parties’ contentions here.
another and had job titles including “sales representative” and “closer.” Id. ¶¶ 5–6, 8–9. Plaintiffs say
that they were paid on a commission only basis and worked more than forty hours in a work week
without being paid overtime compensation. Id. Plaintiffs contend that Defendants violated the FLSA
by failing to pay Plaintiffs’ wages and overtime compensation. Id. ¶ 93. Plaintiffs further allege that
Defendants violated the FLSA by failing to maintain accurate employee pay records. Id. ¶ 95.
Defendants explain that sales employees were non-exempt employees who were paid weekly
on a draw versus commission basis. Doc. 120, Defs.’ Resp. 6. The draw amount was an hourly rate
intended to cover an employee’s minimum wage plus overtime for all hours worked. Id. If a sales
employee’s commission exceeded the amount of his or her draw, he or she would be paid only the
commission amount for the week. Id. If the employee’s commission did not exceed the amount of his
or her draw, then he or she would earn the amount of commission plus an additional amount of draw
depending on the number of hours worked. Id. at 6–7.
Plaintiffs stopped working at Silverleaf before Orange Lake acquired it. In order to connect
their case to Orange Lake, Plaintiffs argue that upon acquisition of Silverleaf, Orange Lake acquired
all of Silverleaf’s debts and liabilities under the successor liability doctrine. Doc. 91, Pls.’ 3d Am.
Compl. ¶ 47.
Plaintiffs originally filed their lawsuit against only Cerberus and Silverleaf on March 13, 2014,
with the intent that it would eventually be certified as a collective action. Doc. 1, Pls.’ Orig. Compl.
Plaintiffs then filed their First Amended Complaint and added SL Holdings as a defendant. Doc. 12,
Pls.’ 1st Am. Compl. In October 2015, Plaintiffs filed a Motion for FLSA Conditional Certification
and Notice to Collective Action Members (First Motion for Certification). Doc. 74. In February
2016, Plaintiffs filed a Third Amended Complaint that asserted almost identical allegations against
two new Defendants, Orange Lake Country Club and Orange Lake Holdings. Doc. 91, Pls.’ 3d Am.
Compl. When Plaintiffs first filed suit in 2014, it would have been impossible to have included
Orange Lake as defendants because they did not acquire Silverleaf until May 2015. Id. ¶ 22.
In April 2016, the case was reassigned to a different judge for all further proceedings. Doc.
97, Special Order No. 3-304. In May 2016, the parties jointly moved to continue the deadlines in
their Scheduling Order because the Court had not yet ruled on Plaintiffs’ First Motion for
Certification. Doc. 99, Joint Mot. to Continue. The Court granted the continuance and extended,
among others, the deadline for discovery from May 2016 to November 2016. Doc. 101, Order. The
Court also denied without prejudice Plaintiffs’ First Motion for Certification as Plaintiffs’ Third
Amended Complaint—adding Orange Lake as defendants—was filed several months after Plaintiffs
filed their First Motion for Certification. Doc. 100, Order.
After the Court granted in part and denied in part Orange Lake’s Motion to Dismiss
Plaintiffs’ Third Amended Complaint, Plaintiffs refiled their Motion for FLSA Conditional
Certification (Second Motion for Certification) in October 2016. Doc. 116. Defendants filed a
Response (Doc. 120), and Plaintiffs filed a Reply (Doc. 125). Therefore the Second Motion for
Certification is ripe for the Court’s review.
Section 216(b) of the FLSA “authorizes a plaintiff to bring a collective action on behalf of
similarly situated persons, provided that any person who desires to become a part of the collective
action files a written consent in the court.” Valcho v. Dall. Cty. Hosp. Dist., 574 F. Supp. 2d 618, 621
(N.D. Tex. 2008) (citing 29 U.S.C. § 216(b)). When a plaintiff seeks to bring a collective action,
district courts have the discretion to implement § 216(b) by facilitating notice to potential plaintiffs.
Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989).
While the FLSA authorizes a plaintiff to bring an action on behalf of similarly situated
persons, the term “similarly situated” is not defined. See 29 U.S.C. § 216(b). And the Fifth Circuit
has declined to adopt any specific test to determine when plaintiffs are similarly situated. Acevedo v.
Allsup’s Convenience Stores, Inc., 600 F.3d 516, 519, 519 n.1 (5th Cir. 2010); Mooney v. Aramco Servs.
Co., 54 F.3d 1207, 1216 (5th Cir. 1995) (“[W]e specifically do not endorse the methodology
employed by the district court, and do not sanction any particular methodology.”), overruled on other
grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). The prevailing test used among courts in
the Northern District of Texas, however, is the two-step approach outlined in Lusardi v. Xerox Corp.,
118 F.R.D. 351 (D.N.J. 1987), consisting of: (1) a notice stage; and (2) a decertification stage.3 See,
e.g., Oliver v. Aegis Commc’ns Grp., Inc., No. 3:08- cv-828-K, 2008 WL 7483891, at *2, 3 (N.D. Tex.
Oct. 30, 2008) (collecting cases).
Under the Lusardi approach, the first step—the notice stage—requires a preliminary
determination, usually based only on the pleadings and submitted affidavits, of whether potential
An alternative and less common approach is the “spurious class action” analysis described in
Shushan v. Univ. of Colo., 132 F.R.D. 263 (D. Colo. 1990). See Hernandez v. Robert Dering Constr., LLC, 191
F. Supp. 3d 675, 680 (S.D. Tex. 2016). Under the Shushan approach, an FLSA collective action is analyzed
like a Federal Rule of Civil Procedure 23 class action where courts focus on numerosity, commonality,
typicality, and adequacy of representation to determine whether plaintiffs are similarly situated. Mooney, 54
F.3d at 1214. But district courts in the Fifth Circuit have not applied this approach with frequency because
both the “Fifth Circuit and the Supreme Court have made statements implying that a Rule 23–type analysis
is incompatible with FLSA collective actions.” Mason v. Amarillo Plastic Fabricators, No. 2:15-cv-00109-J,
2015 WL 4481233, at *3 (N.D. Tex. July 22, 2015) (citing Genesis Healthcare Corp. v. Symczyk, 133 S.Ct.
1523, 1529 (2013); Donovan v. Univ. of Tex. at El Paso, 643 F.2d 1201, 1206 (5th Cir. 1981)).
class members are similarly situated to named plaintiffs. Mooney, 54 F.3d at 1213–14. If they are
similarly situated, then the court can conditionally certify the action and authorize notice to
potential plaintiffs to opt in, and the suit “proceeds as a representative action throughout discovery.”
Id. at 1214. After discovery is largely complete, the defendant may move for decertification, at which
point the court proceeds to the second step—the decertification stage—and again considers again
whether plaintiffs are similarly situated. Id. If the court finds that the plaintiffs who opted in are not
similarly situated, then the class is decertified, the opt-in plaintiffs are dismissed without prejudice,
and the original named plaintiffs proceed to trial on their individual claims. Id. at 1213–14.
Courts use different standards to determine whether plaintiffs are similarly situated depending
on whether the case is at the notice or decertification stage. At the notice stage, the court usually
has minimal evidence, so “the determination is made using a fairly lenient standard and typically
results in conditional certification of a representative class.” Jones v. SuperMedia Inc., 281 F.R.D. 282,
287 (N.D. Tex. 2012); see also Mooney, 54 F.3d at 1214.
At this stage, courts generally “require nothing more than substantial allegations that the
putative class members were together victims of a single decision, policy, or plan.” Mooney, 54 F.3d
at 1214 n.8. A factual basis, however, must exist and a plaintiff must show some “identifiable facts
or legal nexus that binds the claims so that hearing the cases together promotes judicial efficiency.”
Jones, 281 F.R.D. at 287 (quoting Tolentino v. C & J Spec–Rent Servs. Inc., 716 F. Supp. 2d 642, 647
(S.D. Tex. 2010)). In conducting its analysis, the court has “a responsibility to avoid the ‘stirring up’
of litigation through unwarranted solicitation.” Valcho, 574 F. Supp. 2d at 622 (quoting D’Anna v.
M/A–COM, Inc., 903 F. Supp. 889, 894 (D. Md. 1995)).
Courts do not often engage in the second step—the decertification process—until after
“discovery is largely complete and the matter is ready for trial. At this stage, the court has much more
information on which to base its decision, and makes a factual determination on the similarly
situated question.” Mooney, 54 F.3d at 1214.
But there are circumstances where courts will skip the first, lenient analysis. Where parties
have already conducted discovery on the certification issue, courts have less cause for leniency during
the “notice” phase and may choose to apply a more stringent standard. Valcho, 574 F. Supp. 2d at
622; Basco v. Wal-Mart Stores, Inc., No. Civ.A. 00–3184, 2004 WL 1497709, at *4 (E.D. La. July 2,
2004) (“[I]n light of the substantial discovery that has occurred in this matter, the Court will
consider the criteria for both the first and second steps in deciding whether it should certify [the]
matter.”); Pfohl v. Farmers Ins. Grp., No. CV03–3080 DT (RCX), 2004 WL 554834, at *3 (C.D. Cal.
Mar. 1, 2004) (proceeding directly to the decertification stage of the analysis because discovery on
the issue of certification was complete).
Plaintiffs seek to certify the following class: “all current and former non-exempt ‘sales
employees’ of Defendants, who worked onsite at Defendants’ resort properties.” Doc. 116, Pls.’ Mot.
for Certification 2 (footnote omitted). Plaintiffs assert that the term “sales employees” encompasses
a variety of titles4 all dealing with the sale of Defendants’ resort timeshares. Id. at 1, 2 n.9. Plaintiffs
appear to assert that the class should include sales employees who worked at every one of
Plaintiffs list “sales representative, sales employee, sales manager, closer, vc sampler representative,
or any similar title” as being included in the term “sales employee.” Doc. 116, Pls.’ Mot. for Certification 2
n. 9. Plaintiffs also note that the term includes only those employees who were paid as commissioned, nonexempt employees. Id.
Defendants’ resort properties nationwide. See id. at 4. The named Plaintiffs stated in their
declarations that they worked at the following six of Defendants’ resorts: (1) Apple Mountain Resort;
(2) Fox River Resort; (3) Lake O’ The Woods Resort; (4) Piney Shores Resort; (5) The Villages
Resort; and (6) Seaside Resort.5
Conditional Certification Standard
Before conducting its analysis of whether potential opt-in plaintiffs are similarly situated to
named Plaintiffs, the Court first must address Defendants’ argument that a more stringent standard,
rather than the usual lenient one, should be used. Defendants argue that substantial discovery
occurred prior to Plaintiffs moving for conditional certification, and therefore, the Court should skip
right to the more stringent standard in its similarly situated inquiry. Doc. 120, Defs.’ Resp. 15–16.
Defendants support their argument by noting that discovery has been ongoing for 28 months and has
included responses to interrogatories, requests for admission, 175 requests for production of
documents—involving the production of over 6,000 documents—and depositions of the four named
Plaintiffs. Id. at 12–13, 16, 16 n.19. Defendants point out that Plaintiffs had the opportunity to
depose the Defendants’ corporate representatives—and indeed were ordered to schedule those
depositions in Dallas by October 21, 2016—but chose not to do so. Id. at 13. Furthermore,
Defendants note that the discovery period was set to expire on November 21, 2016,6 only weeks after
In his declaration, Plaintiff Parker stated that he worked at Seaside Resort, Apple Mountain Resort,
and Piney Shores Resort. Doc. 117-2, Pls.’ App. 38. Collins stated that she worked at The Villages Resort and
Fox River Resort. Doc. 117-3, Pls.’ App. 41. Jackson stated that he worked at The Villages Resort and Lake
O’ the Woods Resort. Doc. 117-4, Pls.’ App. 44. And Owens stated that he worked at The Villages Resort.
Doc. 117-5, Pls.’ App. 47.
While the discovery deadline expired in November 2016, the Court is aware of the pending Motion
to Extend Discovery Deadline. Doc. 124.
Plaintiffs filed their Second Motion for Certification. Id. at 16.
Plaintiffs disagree and argue that Defendants fail to accurately characterize the amount of
discovery that has occurred in the case. Doc. 125, Pls.’ Reply 7. They posit that Defendants make
it appear that discovery is nearly complete, but Plaintiffs have not deposed a single witness. Id.
Plaintiffs say that while some discovery has occurred, it is far from complete and in no way ready for
trial. Id. at 8. Plaintiffs point to the fact that Defendants were only recently ordered to produce the
names of Defendants’ corporate representatives after Defendants refused to produce them for
deposition in Dallas, Texas. Id. Therefore, according to Plaintiffs, the case is actually in the early
stages of discovery, regardless of time, and the Court should apply a more lenient standard. See id.
The correct standard to apply in this case is not immediately clear because the amount of
discovery and the kind of discovery that has been completed falls somewhere between that of the
cases applying the lenient standard7 and that of the cases applying the stringent standard.8 There is
See Fulton v. Bayou Well Servs., —F. Supp. 3d —, 2016 WL 5377903, at *2, 3 (N.D. Tex. 2016)
(applying the lenient approach after noting that “even when the parties have conducted partial or limited
discovery . . . courts do not skip the first step and apply the second step of the Lusardi approach”); Hernandez,
191 F. Supp. 3d at 682 (applying the lenient standard, even though some discovery had taken place, where
six months of discovery remained, no depositions had been taken, and no discovery had occurred concerning
the nature and extent of the relationships among the defendants); Williams v. Rowell Inv., Inc., No. 3:14-cv1469-P, 2015 WL 12533010, at *1 (N.D. Tex. May 15, 2015) (applying the lenient standard because
“[n]otice, time for opting-in, and discovery have not yet taken place.”).
See Blake v. Hewlett-Packard Co., No. 4:11-cv-592, 2013 WL 3753965, at *5 (S.D. Tex. July 11,
2013) (applying a heightened evidentiary standard to its analysis at the notice stage because the plaintiffs had
the opportunity to gather evidence in that they had five months of discovery, the defendant had taken one
deposition, the plaintiffs had taken four depositions, and the plaintiffs had the opportunity to review
thousands of pages of documents and attached portions of them to their motion); Valcho, 574 F. Supp. 2d
at 622–23 (applying a more stringent standard where parties conducted three months of discovery—the total
amount of time they had allocated to the certification issue—and the plaintiff had made efforts to identify
potential plaintiffs by maintaining a website and mailing written communications directly, so it was
appropriate for the court to expect the plaintiff to be able to produce evidentiary support beyond the bare
certainly more discovery than in Hernandez, where six months remained in the discovery period and
no depositions had been taken, or in Williams, where no discovery had taken place. Hernandez, 191
F. Supp. 3d at 682; Williams, 2015 WL 12533010, at *1. But it appears that there is less discovery
than in Blake, where both parties had an opportunity to take a deposition, the plaintiffs having taken
four, or in Pfohl, where the parties agreed that discovery on certification was complete. Blake, 2013
WL 3753965, at *5; Pfohl, 2004 WL 554834, at *3. Several other cases, though, address situations
that are not as clear cut.
In Valcho the district court discussed the rationale for using different evidentiary standards.
Valcho, 574 F. Supp. 2d. at 622. When plaintiffs have not conducted discovery, they cannot marshal
their best evidence, so courts should give them some leniency. But that rationale disappears if they
have conducted discovery because then the plaintiff should be required to support his or her claim
with evidence in order to avoid a “frivolous fishing expedition.” Id. (quoting D’Anna, 903 F. Supp.
Here, Plaintiffs have engaged in a significant amount of discovery. Plaintiffs’ emphasis of the
fact that they have not taken a single deposition and only just recently received the names of
corporate representatives concerns the Court. Doc. 125, Pls.’ Reply 8. The parties were ordered to
set the depositions of those corporate representatives on or before October 21, 2016, but Plaintiffs
chose not to. See Doc. 110, Order. Plaintiffs have had the opportunity to depose those corporate
allegations contained in her complaint and declaration); Basco, 2004 WL 1497709, at *4 (applying a more
stringent standard where “substantial discovery” had occurred, the court heard video deposition testimony
of a “substantial number of plaintiffs,” and the case had a long procedural history, so the court could “make
an educated decision” as to whether certifying the matter as a collective action would survive the
decertification process); Pfohl, 2004 WL 554834, at *3 (applying a more stringent standard because the
parties did not dispute that discovery relating to the certification issue had already been undertaken).
- 10 -
representatives, and they have also received a significant amount of discovery from Defendants.
Therefore, it appears that the rationale explained in Valcho—where a plaintiff who has been able to
conduct discovery should be expected to better support his or her claim—applies here, and the Court
should apply a more stringent standard to its analysis.
But even with that rationale in mind, other courts have applied a lenient standard in the face
of a substantial amount of discovery. In McKnight v. D. Houston, Inc., the district court determined
that a lenient standard was appropriate, even though the parties had deposed the plaintiffs and one
individual connected with the defendants, because significant additional discovery had to be
completed, “including discovery into the nature and extent of the relationships among the
defendants.” 756 F. Supp. 2d 794, 802 (S.D. Tex. 2010). Here, Plaintiffs’ depositions have been
taken but, according to Plaintiffs, there remains a significant amount of discovery because they have
not had a chance to depose any witness. Therefore, discovery remains concerning the nature and
extent of the relationships among Defendants. As discussed above, though, Plaintiffs chose not to
set those depositions and have offered no explanation for doing so.
In Lang v. DirecTV, the district court applied a lenient standard, even though the defendants
had produced thousands of records over the course of twenty months. No. 10–1085 “G”(1), 2011
WL 6934607, at *7 (E.D. La. Dec. 30, 2011). The court did so for two reasons: (1) the court had
earlier indicated that it would use the lenient standard, so there was an issue of fairness, and (2) the
court also noted that it was “leery” to apply any heightened standard because the Fifth Circuit has
not yet indicated that discovery warrants a heightened standard. No. 10–1085 “G”(1), 2011 WL
6934607, at *7 (E.D. La. Dec. 30, 2011). Despite 20 months of discovery, other considerations
compelled the court to apply a more lenient standard.
- 11 -
Here, there have been 28 months of discovery, a substantial amount of time. Doc. 120, Defs.’
Resp. 16. The Court notes, however, that circumstances outside the parties’ control contributed to
at least some of the length of their discovery period. Plaintiffs originally filed their First Motion for
Certification in October 2015—several months before the discovery deadline. But after the case was
reassigned to a different judge, the Court denied the First Motion for Certification without prejudice
because Plaintiffs had filed their Third Amended Complaint adding the Orange Lake defendants
after they acquired Silverleaf. Furthermore, the live pleading was not settled as such until September
2016 when the Court ruled on Orange Lake’s Motion to Dismiss it. While the Court’s denial of the
First Motion for Certification, by itself, does not compel the Court to conduct its analysis using the
lenient standard, it does indicate that the sheer length of the discovery period should not be given
as much weight as Defendants propose.
Ultimately the Court agrees with Defendants and finds that it is appropriate to conduct its
analysis using the more stringent standard. Plaintiffs have received a substantial amount of discovery
from Defendants, including thousands of pages of documents. This is not a scenario where the case
was recently filed and Plaintiffs have been able to produce only their own declarations. This case was
rapidly approaching its trial date. And while the Court dismissed Plaintiffs First Motion for
Certification, causing some delay, there had been almost two years of discovery prior to that.
At this point in the case, Plaintiffs should be able to better support their claims. And with
the significant amount of discovery in front of the Court, the Court concludes that it can “make an
educated decision” as to whether certifying the matter as a collective action would survive the
decertification process. See Basco, 2004 WL 1497709, at *4. Thus, the Court will apply a more
stringent standard to its similarly situated analysis below.
- 12 -
Defendants’ Motion to Strike Plaintiffs’ Declarations
Before turning to its similarly situated analysis, the Court must first address Defendants’
Motion to Strike Declarations Filed in Support of Plaintiffs’ Motion for Certification. Doc. 122.
Defendants argue that Plaintiffs’ declarations should be totally stricken, or in the alternative, certain
portions should be stricken because they are “identical, boilerplate, rubber-stamped documents that
directly contradict Plaintiffs’ sworn deposition testimony.” Doc. 122, Defs.’ Mot. to Strike 1.
Defendants also argue that large portions are unsupported by the “declarants’ personal knowledge;
are vague, speculative, and conclusory; lack foundation or personal knowledge; present improper
opinion testimony; or are based on hearsay statements.” Id. at 1–2.
Plaintiffs respond by arguing that Defendants’ objections are predicated on an incomplete
reading of Plaintiffs’ depositions and that the objections are not proper for the certification stage of
litigation. Doc. 127, Pls.’ Resp. 1. Plaintiffs then provide Plaintiffs’ deposition testimony to support
each challenged statement in Plaintiffs’ declarations. Id. at 4–12.
“The factual support necessary for certification of a collective action is modest, and the
district court applies a lenient evidentiary standard.” Nguyen v. Versacom, LLC, No. 3:13-cv-4689,
2015 WL 1400564, at *3 (N.D. Tex. Mar. 27, 2015). Many courts, therefore, have held that
affidavits or declarations offered in support of motions for conditional certification need not be based
on evidence that would be admissible at trial. Id. (citing Lee v. Metrocare Servs., 980 F. Supp. 2d 754,
759–61 (N.D. Tex. 2013) (“Plaintiffs need not present evidence in a form admissible at trial at the
notice stage.”)). That said, the contents of affidavits and declarations must be based on personal
knowledge. Lee, 980 F. Supp. 2d at 762 (citing White v. MPW Indus. Servs., Inc., 236 F.R.D. 363, 369
(E.D. Tenn. 2006)).
- 13 -
The Fifth Circuit has noted that “a declarant may satisfy the personal knowledge requirement
based on his position as a corporate employee.” Id. at 763 (citing Villarreal v. St. Luke’s Episcopal
Hosp., 751 F. Supp. 2d 902, 912 (S.D. Tex. 2010) (“By virtue of his position, [declarant] has properly
stated a basis upon which he may have gained personal knowledge of the organization by way of his
day-to-day work and interaction with other employees . . . during his tenure with [d]efendant.”)).
Furthermore, a declaration can overcome evidentiary objections to a declarant’s personal knowledge
when the declaration contains a statement that it is based on personal knowledge. Perez v. Alcoa
Fujikura, Ltd., 969 F. Supp. 991, 998 (W.D. Tex. 1997).
The statements in Plaintiffs’ declarations can be broken down into two categories—those
about Plaintiffs’ experiences as sales employees and those about other sales employees. The Court
sees no reason to strike the entirety of the declarations because those statements about Plaintiffs’
personal experiences as sales employees reasonably fall within their personal knowledge. For example,
in Collins’s declaration, she recounts the years in which she was employed, the locations at which
she worked, her job titles, that she often worked in excess of 40 hours per week, and that she was
regularly told by managers that she was not allowed to record more than 40 hours per week. Doc.
117-3, Pls.’ App. 41–42. These kinds of statements reasonably fall within her personal knowledge
because they are about her own experience. The other Plaintiffs’ declarations follow a pattern similar
to Collins’s, so they need not be discussed separately.9
Defendants also argue that the declarations should be stricken because they are “identical” and “do
not adequately represent each individual Plaintiff.” Doc. 122, Defs.’ Mot. to Strike 3. Defendants cite to cases
where courts gave identical declarations little weight. Id. at 3 n.13. Plaintiffs respond by citing to cases where
district courts found similar allegations in declarations to support certification. Doc. 127, Pls.’ Resp. 2. The
Court finds that similar declarations alone do not warrant the Court striking them from the record. While
the weight of such declarations may be called into question during the Court’s similarly situated analysis, it
would be inappropriate to strike them from the record simply because they are similar.
- 14 -
The statements regarding other sales employees, however, are less clearly within Plaintiffs’
personal knowledge. For instance, Collins states the following in her declaration:
I am informed and believe, based on my time working for Silverleaf, my personal
observations at Villages Resort and Fox River Resort and my discussions with other
Sales Representatives, Closers, and Sampler Representatives, that none of Silverleaf’s
salespersons were paid overtime and that we were all subject to the same policy which
prohibited recording any overtime on our timesheets.
Id. at 42. The Court finds that Collins’s assertions about Villages and Fox River, by virtue of her
position as a sales employee at those resorts, could reasonably be within her sphere of personal
knowledge because of her day-to-day work and interaction with other employees. See Villarreal, 751
F. Supp. 2d at 912. But it is less clear how she could have personal knowledge of the conditions at
all the other resorts to the extent that she could conclude that none of Silverleaf’s salespeople were
In Plaintiffs’ Reply, they provide deposition excerpts to justify the declaration statements. For
example, to back up Collins’s assertion that none of Silverleaf’s salespersons were paid overtime,
Plaintiffs point to her deposition where she explains that she knew denying sales employees overtime
was a companywide policy because the management implementing the rules would travel and
implement the same rules at each location. Doc. 127, Pls.’ Reply 8. Collins’s deposition testimony
certainly provides more context for her declaration statements. But there are still questions about
whether she knew which resorts were visited and if management implemented those policies there.
These questions, though, appear better suited for the Court’s similarly situated analysis.
There, the Court can consider whether Plaintiffs’ conclusory statements as to all sales employees are
sufficient to conditionally certify a class. While the declarations may fall short for that analysis, they
are sufficiently grounded in personal knowledge to survive Defendants’ Motion to Strike. For the
- 15 -
foregoing reasons, the Court DENIES Defendants’ Motion to Strike. The Court now turns to its
similarly situated analysis.
Whether Plaintiffs Are Similarly Situated
As referenced above, the Court will apply a more stringent standard to its analysis. The Court
considers its approach an “intermediate” one that maintains the two-step process but imposes “a
heightened evidentiary standard commensurate with the opportunity to conduct discovery.” Blake,
2013 WL 3753965, at *5. In other words, the Court will analyze the same elements usually
considered at the notice stage, but Plaintiffs must produce more than minimal evidence. See id.
Generally, at the first stage in the Lusardi analysis, courts “require nothing more than
substantial allegations that the putative class members were together victims of a single decision,
policy, or plan.” Mooney, 54 F.3d at 1214 n.8. To make this determination the Court will consider
whether: “(1) there is a reasonable basis for crediting the assertion that aggrieved individuals exist;
(2) those aggrieved individuals are similarly situated to the plaintiff in relevant respects given the
claims and defenses asserted; and (3) those individuals want to opt in to the lawsuit.”10 Jones, 281
F.R.D. at 287; McKnight, 756 F. Supp. 2d at 801. “A court may deny a plaintiff’s right to proceed
collectively only if the action arises from circumstances purely personal to the plaintiff, and not from
any generally applicable rule, policy, or practice.” Tolentino, 716 F. Supp. 2d at 650.
The Court notes that other district courts have rejected the third element because it is not
statutorily required and because requiring evidence of putative class members who are willing to join a
collective action before an appropriate class has been defined conflicts with the Supreme Court’s directive
that the FLSA be liberally construed to effect its purposes. Hernandez, 191 F. Supp. 3d at 681. As discussed
below, Plaintiffs fall short on the second element with regard to some resorts, so the third element is not
outcome determinative for those resorts. And Plaintiffs satisfy both the second and third elements for other
resorts, so the third element is again not outcome determinative. Therefore, the Court will consider it without
determining the propriety of doing so.
- 16 -
Do Aggrieved Individuals Exist?
Plaintiffs assert that Defendants have a “scheme” to avoid paying federally mandated
minimum wages and overtime to their non-exempt sales employees. Doc. 116, Pls.’ Mot. for
Certification 2. Plaintiffs allege that they were forced to do significant amounts of off-the-clock work
and not paid overtime compensation for it. Id. at 11. And even when sales employees could record
over 40 hours, Plaintiffs say, Defendants still failed to properly compensate them. Id. at 11,16.
Plaintiffs cite to their deposition excerpts to support their contentions. Plaintiff Parker
(Seaside, Apple Mountain, and Piney Shores) stated that he was not compensated for work
exceeding 40 hours a week because a director or sales manager told him to record only 40 hours.
Doc. 117-17, Pls.’ App. 136–37. Parker notes that employees were told to keep their time sheets
around 40 hours at regular meetings. Id. at 139. Parker said that he was told to record a lunch break
even though “[t]here is no lunch break.” Id. Parker named Allen Jowers as well as Marcie Wolfe and
“Richard” as managers and supervisors who were involved in telling him to record only certain
amounts of time. Id. at 140, 142. Plaintiff Collins(Fox River and The Villages) stated that her
“superiors” told her to always record a lunch break even though she didn’t take one and co-workers
who had worked for Silverleaf for a long time told her to record only 40 hours a week on her time
sheet regardless of the number of hours worked. Doc. 117-18, Pls.’ App. 150–51.
Plaintiff Jackson (Lake O’ The Woods and The Villages) stated that he was not paid for all
hours worked because: (1) his director and manager told him to write down incorrect times and to
keep his hours around 40 a week; (2) a director or manager told him to record only 40 hours a week
on his time sheet; and (3) Pam Wilson, at The Villages, would not give sales employees their checks
if the hours were not what they should be at the end of each week. Doc. 117-19, Pls.’ App. 162–64.
- 17 -
Jackson also discussed “bucket duty,” where sales employees were required to come in on their days
off to answer phone calls. Id. at 166. Jackson stated that Sam Sims, a manager or supervisor,
specifically told him not to record time, so he was never paid for “bucket duty.” Id.
Plaintiff Owens (The Villages) stated that while he never took lunch breaks, he still had to
record them on his time sheets, and the director at the time—either Trey Hung, Sam Sims, or Pat
Wilson—told him to change the time he “took lunch” each day to make it appear as though he was
actually taking a lunch rather than simply recording it. Doc. 117-20, Pls.’ App. 176–78. Owens
stated that the directors would discuss the timekeeping policies at morning meetings. Id. Owens
stated that he also signed blank time sheets “all the time.” Id. at 180.
Plaintiffs’ deposition testimony demonstrates that they did not receive overtime
compensation as required by the FLSA because: (1) they were told to record around 40 hours a week
regardless of the number worked; (2) they recorded lunch breaks even though they didn’t take them;
and (3) that these practices likely extended beyond the four named Plaintiffs given the fact that
managers and directors communicated these policies at meetings and other co-workers allegedly
followed these rules as well. Thus, Plaintiffs have satisfied the first element of the applicable test by
showing that there is a reasonable basis for believing that other aggrieved individuals exist. See
Hernandez, 191 F. Supp. 3d at 682.
Are There Aggrieved Individuals Who Are Similarly Situated to Plaintiffs?
Plaintiffs “must demonstrate a reasonable basis for believing that a class of similarly situated
persons exists.” Hernandez, 191 F. Supp. 3d at 683 (citing Heeg v. Adams Harris, Inc., 907 F. Supp.
2d 856, 862 (S.D. Tex. 2012)). To make this determination, courts consider both job requirements
and pay provisions. Hernandez, 191 F. Supp. 3d. at 683; Mason, 2015 WL 4481233, at *4 (citing
- 18 -
Valcho, 574 F. Supp. 2d at 621; Songer v. Dillon Res., Inc., 569 F. Supp. 2d 703, 706 (N.D. Tex.
2008)). The positions of the employees and the named plaintiffs need only be similar, not identical.
Valcho, 574 F. Supp. 2d at 621. Essentially, a sufficient “factual nexus” must exist between the named
Plaintiffs’ situation and that of the proposed class members. Williams v. Grayco Cable Servs., Inc., 187
F. Supp. 3d 760, 766 (S.D. Tex. 2016).
Plaintiffs contend that the proposed plaintiffs include all sales employees who worked for any
of the Defendants for the past three years. Doc. 116, Pls.’ Mot. for Certification 2–3. Plaintiffs assert
that regardless of their role in the sales process, the primary goal of all sales employees was to finalize
a contract of sale with prospective buyers. Id. at 5.
Defendants argue that Plaintiffs are not similarly situated to putative class members because
the proposed plaintiffs include people working in different sales departments, at different resorts
across the nation, for different supervisors, using different timekeeping methods, and doing various
jobs such as working in contracts, gifting, or hospitality. Doc. 120, Defs.’ Resp. 20–21. Defendants
point out that some Silverleaf resorts operated with two different sale departments on site: Outside
Sales and Member Services.11 Id. at 5. Defendants note that all named Plaintiffs worked for Outside
Sales teams rather than Member Services. Id. at 10. Defendants further refute Plaintiffs’ proposed
class of plaintiffs because it encompasses sales employees working under Orange Lake after it took
over Silverleaf in May 2015, and Plaintiffs produced no evidence with respect to working under
Outside Sales dealt with new customers who had not yet purchased a membership or timeshare
interest. Doc. 120, Defs.’ Resp. 5. And Member Services, by contrast, exclusively engaged with current
Silverleaf owners who were looking to purchase additional or different ownership interests. Id.
- 19 -
Orange Lake rather than Cerberus. Id.
There is no dispute that the four named Plaintiffs were classified as non-exempt employees
of Silverleaf, and that Silverleaf generally classified its sales representatives and sales managers as
non-exempt employees. While Plaintiffs held varying job titles, they clarify in their declarations that
their duties as “sales representative,” “closer,” “vc sampler representative,” and “sampler
representative” were essentially the same in that the primary responsibility was to sell timeshare
interests. See, e.g., Doc. 117-2, Pls.’ App. 38. Plaintiffs do not differentiate between Outside Sales and
Member Services. But they do state that the purpose of all sales employees was to finalize a contract
with prospective buyers—the primary goal of Outside Sales as described by Defendants. In short,
each of the named Plaintiffs worked in Outside Sales and Plaintiffs describe the duties of only
Outside Sales when describing sales employees. Therefore, it does not appear that sales employees
of Members Services were similarly situated to Plaintiffs.
The Court further finds that the responsibilities for sales employees appeared to not change
with each resort location. In a declaration provided by Defendants, a vice president for Silverleaf
described the job responsibilities of sales representatives, sales managers, and sampler representatives
without differentiating between resort locations. Doc. 120, Defs.’ Resp. 5; Doc. 121-1, Defs.’ App.
3. That declaration also differentiates between the kind of sales positions held by Plaintiffs and
positions such as sales trainers, gifting clerks, and office managers in that the latter were not paid
based on commission. Id. at 4. Therefore, from the evidence in the record, it appears that all sales
employees who worked in Outside Sales and were paid based on commission performed the same
basic duties and were therefore similarly situated with regard to job requirements.
- 20 -
Regarding the compensation scheme, “[a] unified plan, policy, or scheme need not be proved
at the notice stage; rather, the existence of a plan or policy is probative evidence that similarly
situated plaintiffs exist.” McDonald v. Worldpac, Inc., No. 3:13-cv-4965-K, 2015 WL 12753533, at
*4 (N.D. Tex. Sept. 8, 2015). But “[e]vidence of similar job duties and a single policy which violates
the FLSA is sufficient to find putative class members similarly situated.” Williams v. Grayco Cable
Servs., Inc., 187 F. Supp. 3d 760, 767 (S.D. Tex. 2016). If “there is no single decision, policy, or plan
that affects the [p]laintiffs, the case will have enormous manageability problems.” Procter v. Allsups
Convenience Stores, Inc., 250 F.R.D. 278, 281 (N.D. Tex. 2008) (internal quotation marks omitted.).
FLSA violations at one of a company’s multiple locations generally are not, without more,
sufficient to support company-wide notice. Rueda v. Tecon Servs., Inc., No. H-10-4937, 2011 WL
2566072, at *4 (S.D. Tex. June 28, 2011). Yet “geographic commonality is not necessary to satisfy
the FLSA collective action’s ‘similarly situated’ requirement,” so long as the employees were
impacted by a common policy. Vargas v. Richardson Trident Co., No. H-09-1674, 2010 WL 730155,
at *8 (S.D. Tex. Feb. 22, 2010). Accordingly, if there is a reasonable basis to conclude that the same
policy applies to multiple locations of a single company, certification is appropriate. Flowers v. MGTI,
LLC, No. H-11-1235, 2012 WL 1941755, at *4 (S.D. Tex. May 29, 2012) (citing Rueda, 2011 WL
2566072, at *4).
Other district courts in this state have addressed a situation where a plaintiff seeks to certify
a group of plaintiffs spread across several geographic locations. In McCloud v. McClinton Energy Grp.,
L.L.C., the district court found that three affidavits attesting to identical compensation schemes at
a Midland, Texas location and a Searcy, Arkansas location of the defendant’s company was sufficient
- 21 -
evidence for conditional certification of technicians dispatched out of those two facilities. No. 7:14cv-120, 2015 WL 737024, at *8 (W.D. Tex. Feb. 20, 2015). But because the plaintiffs failed to
produce any evidence that a comprehensive, company-wide compensation scheme existed beyond
those two facilities, the court limited its finding of similarly situated employees to those two facilities.
Id. In Blake v. Colonia Sav., F.A., the named plaintiff worked at a remote office location of the
defendant, but because two potential class members filed notices of consent demonstrating that the
same overtime policy occurred in the main Dallas office, the court found that the alleged unlawful
policy applied irrespective of where employees worked and thus potential plaintiffs were similarly
situated. No. H-04-0944, 2004 WL 1925535, at *2 (S.D. Tex. Aug. 16, 2004).
Here, Plaintiffs assert that Defendants operated a “scheme” to avoid paying sales employees
overtime. Plaintiffs, however, worked at only six of the Defendants’ total number of resort locations.
Therefore, if Plaintiffs fail to produce more than minimal evidence that sales employees at all resort
locations were impacted by the purported “scheme,” then they fail to show a factual nexus
connecting Plaintiffs to all potential plaintiffs.
Defendants argue that Plaintiffs fail to establish a common scheme across multiple resorts
because Plaintiffs’ allegations are purely personal. Doc. 120, Defs.’ Resp. 17–19. Defendants argue
that Plaintiffs have no knowledge of timekeeping or pay practices at other resorts, or for other time
periods, other than those for which they personally worked. Id. at 11. Furthermore, Defendants
contend that an individualized determination as to whether a sales employee was improperly
compensated would require a highly specific, individualized inquiry into which resort the plaintiff
worked at, whether supervisors or managers there similarly told sales employees to record only 40
hours, and whether they were every denied overtime. Id. at 18.
- 22 -
Here, it has already been established, for purposes of conditional certification, that the four
named Plaintiffs are aggrieved in that they were denied overtime compensation for the hours they
worked. In order to establish that some common policy or scheme existed that extended to all other
sales employees, Plaintiffs provide deposition excerpts that indicate managers and supervisors
communicated this policy to multiple employees and that Plaintiffs have heard that other resort
locations have implemented the same policy.
In both Owens (The Villages) and Jackson’s (The Villages and Lake O’ The Woods)
depositions, they recount their time working at The Villages, and each names Pam Wilson as an
individual involved in perpetrating a rule where employees could record only about 40 hours a week.
See Doc. 117-19, Pls.’ App. 163; Doc. 117-20, Pls.’ App. 177–78. Owens also notes that this policy
was communicated at meetings, not just in one-on-one conversations. Doc. 117-20, Pls.’ App.
177–78. In Parker’s deposition, he recounts his time as a sales employee at Piney Shores and similarly
names specific directors who perpetrated a policy denying overtime. Doc. 117-17, Pls.’ App. 140.
He also stated that there were daily meetings where employees were told to keep their hours under
40. Id. at 139. Plaintiffs do not appear to have provided testimony relating to Parker’s time at Seaside
or Apple Mountain.12 Collins discusses similar experiences at Fox River and The Villages. 121-1,
Defs.’ App. 300–01.
Plaintiffs attempt to establish the basis for their knowledge of other resorts besides The
Even though Parker stated in his declaration that he worked at Piney Shores, Apple Mountain, and
Seaside, it appears that his primary location was Piney Shores. Defendants state that Parker was an employee
for Piney Shores—they do not mention Apple Mountain or Seaside. Doc. 120, Defs.’ Resp. 10. And in
Parker’s deposition, he answers affirmatively to the statement that he “went to the Apple Mountain Resort
a couple of times.” Doc. 117-17, Pls.’ App. 141. It appears to the Court, then, that his testimony primarily
concerns his time at Piney Shores.
- 23 -
Villages, Piney Shores, Fox Fiver, and Lake O’ The Woods in their depositions. In Collins’s (Fox
River and The Villages) deposition, she stated that the other resorts implemented the same policy.
Doc. 117-18, Pls.’ App. 154. She supports this statement with her assertion that she “knew quite a
few people that worked at . . . other resorts that did that.” Id. at 154–55. These people included a
man and his wife who worked at Fox River with her. Collins remembered the man telling her that
it was normal to work very late hours, specifically naming Hill Country and Oak N’ Spruce. Id.
In Collins’s testimony, however, she also admits that the man didn’t say anything about what
was recorded on his time sheets. Id. And she admitted that she had never seen a time sheet from
another resort other than the two she worked at. Id. Similar to Collins’s admission, Defendants
provide an excerpt from Parker’s deposition where he admitted that he did not see any other sales
employees’ time sheets at The Villages, Seaside, or Apple Mountain. Doc. 121-1, Defs.’ App. 259.
Furthermore, Parker stated that there was never any training session or conference where sales
employees from other resorts would train together. Doc. 121-1, Defs.’ App. 260.
To further challenge Plaintiffs’ evidence, Defendants reference the Silverleaf and Orange
Lake written policies. Doc. 120, Defs.’ Resp. 8–10. The Silverleaf Employee Handbook, published
in 2012, indicates that nonexempt employees are eligible for overtime pay based on “actual ‘hours
worked’”; that employees must “record actual time worked”; and that employees “should not work
off the clock.” Doc. 117-6, Pls.’ App. 52–53. Orange Lake’s Handbook provides that “no team
member is ever permitted to work ‘off the clock’ for any reason even if instructed to do so by anyone
including supervisors, or anyone in management.” Doc. 121-1, Defs.’ App. 338.
Written policies, such as the Silverleaf Employee Handbook, that contradict a plaintiff’s
allegations are relevant when assessing whether a common policy or plan exists, but they are not
- 24 -
dispositive. Richardson, 2012 WL 334038, at *4. Said differently, a written policy can be a factor
weighing against conditional certification, but it will not defeat a plaintiff’s motion when a plaintiff
provides countervailing evidence. Id. (citing Burch v. Quest Commc’ns Int’l., Inc., 500 F. Supp. 2d
1181, 1188 (D. Minn. 2007)). As discussed further below, the Court finds that Plaintiffs’ evidence
refutes only Silverleaf’s Handbook with regard to four resorts.
Defendants also provide declarations of sales employees who worked at various resorts. Adam
Carroll, who was a sales representative in Outside Sales at Hill Country Resort, stated that: (1) he
was required to keep accurate records of the time he worked; (2) he was trained on how to do so;
(3) he frequently worked over 40 hours a week and recorded that time accurately; (4) he was
compensated for it; and (5) he was never instructed by a supervisor or manager to not record his
time accurately. Doc. 121-1, Defs.’ App. 231–32. Defendants provide similar declarations from other
Ultimately, Plaintiffs have produced more than a minimal amount of evidence establishing
sales employees were similarly situated with Plaintiffs with regard to The Villages, Lake O’ The
Michael Carter, a Member Services Sales Representative at The Villages, stated that his time
records were accurate, he generally worked between 40 and 50 hours a week and was properly compensated,
and has never had a supervisor or manager instruct him not to record his time accurately or record his time
for him. Doc. 121-1, Defs.’ App. 234–36. Ben Stoneberg, a Member Services Sales Manger at The Villages,
stated that he recorded his time accurately and was compensated for the time recorded, he had never been
instructed otherwise, and he had never signed a blank time sheet. Id. at 238–41. Thomas Tinsley, a Member
Services Sales Manager at The Villages who also worked for Outside Sales, made the same assertions as
Carter and Stoneberg. Doc. Id. at 243–45. But Plaintiffs argue in their Reply that courts in the Fifth Circuit
do not give a great deal of weight to “happy camper declarations,” so this Court should not give as much
weigh to these declarations either. Doc. 125, Pls.’ Reply 9 (citing In re Wells Fargo Wage & Hour Employment
Practices Ltig. (No. III), No. H-11-2266, 2012 WL 3308880, at *18 (S.D. Tex. Aug. 10, 2012) (finding that
the hand-picked “happy camper” declarations should not be given significant weight as to their substance
when the plaintiffs had not had an opportunity to depose the declarants)). Here, the Court gives them limited
weight. For example, where Plaintiffs have produced a substantial amount of evidence regarding the
conditions of working in Outside Sales for The Villages, the declarations of Member Services employees at
the same resort do not weigh so heavily as to impede certification of Outside Sales employees at The Villages.
- 25 -
Woods,14 Fox River, and Piney Shores. Plaintiffs’ evidence of specific managers and directors telling
sales employees to record only 40 hours a week, and evidence of meetings where the purported policy
was communicated to more employees than just Plaintiffs, indicates that sales employees at those
resorts were all subject to a common policy or plan. Therefore, Plaintiffs’ evidence overcomes
Silverleaf’s written policies. For that reason, the Court finds that sales employees at The Villages,
Lake O’ The Woods, Piney Shores, and Fox River were similarly situated as to pay provisions.
But, sales employees at resorts other than the four listed15 are not similarly situated because
Plaintiffs failed to produce evidence contradicting Silverleaf’s written policies and failed to establish
that they were subject to a common policy or plan. While Plaintiffs tried to show that they had
knowledge that such a plan or policy extended to other resort locations, the Court concludes from
their deposition testimony that they did not have personal knowledge of other resorts and therefore
cannot overcome the more stringent standard required in light of the amount of discovery that has
been conducted. Unlike in Blake, where potential plaintiffs filed consent forms indicating that a
similar policy extended to an additional location, no potential plaintiff has filed a consent form or
affidavit indicating that other resorts were affected. After several years of discovery, Plaintiffs needed
more evidence than four plaintiffs’ belief that the policy extended beyond their own resorts.
Plaintiff Jackson also worked at Lake O’ the Woods, as he makes clear in his depositions, and this
resort was near the Villages but did not have its own sales team. Doc. 121-1, Defs. App. 284–85. Lake O’ The
Woods is one of the resorts that Defendants do not mention as being part of their Silverleaf resorts. The
resort may no longer be a part of the Silverleaf resorts or Defendants might not consider it as a separate resort.
Regardless, based on Jackson’s testimony, the Court considers testimony concerning The Villages to similarly
apply to Lake O’ The Woods for purposes of conditional certification.
The Court does not consider sales employees at the following resorts to be similarly situated:
(1) Apple Mountain Resort; (2) Holly Lake Resort; (3) Timber Creek Resort; (4) Hill Country Resort;
(5) Holiday Hills Resort; (6) Oak N’ Spruce Resort; (7) Orlando Breeze Resort; (8) Ozark Mountain Resort;
and (9) Seaside Resort.
- 26 -
Similarly, sales employees who worked under only Orange Lake are not similarly situated
because Plaintiffs failed to overcome Orange Lake’s written policy with evidence to the contrary.
Indeed, Plaintiffs produced no evidence of any sales employee’s experience working under Orange
Lake’s policies. In sum, the evidence indicates that only sales employees at The Villages, Lake O’ The
Woods, Piney Shores, and Fox River were subject to a common policy or plan with regard to pay
provisions and were thus similarly situated.
Are There Similarly Situated Aggrieved Individuals Who Want to Opt in to the
“[A] district court should satisfy itself that there are other employees . . . who desire to ‘optin.’” McKnight, 756 F. Supp. 2d at 805 (quoting Simmons v. T-Mobile USA, Inc., No. H-06-1820,
2007 WL 210008, at *9 (S.D. Tex. Jan. 24, 2007)). Other potential plaintiffs’ “interest in joining the
litigation is relevant to deciding whether or not to put a defendant employer to the expense and
effort of notice to a conditionally certified class of claimants in a collective action.” Id. (quoting
Simmons, 2007 WL 210008, at *9). “Even when a common owner has only a few small locations,
there must be at least some minimal showing that employees at other locations are interested in
joining the suit.” Id. (citing Detho v. Bilal, No. H-07-2160, 2008 WL 1730542, at *6 (S.D. Tex. Apr.
Another district court faced a similar set of circumstances to the those before the Court in
McKnight. There the court considered whether to conditionally certify employees who worked at six
different clubs. See McKnight, 756 F. Supp. 2d at 797. The named plaintiffs worked at two of the six
clubs. Id. at 807. Those plaintiffs, however, failed to provide evidence that any employee at one of
the other clubs had an interest in joining the suit. Id. Even at a lenient standard, it is not enough for
- 27 -
a plaintiff to only state that he or she believes there are others interested in joining. Id. (citing Detho,
2008 WL 1730542, at *6). Because the plaintiffs could not even make a minimal showing that
employees at the other clubs were interested, the court conditionally certified a class of employees
at only the two clubs where the named plaintiffs worked. Id.
Defendants argue that Plaintiffs failed to show that there are other similarly situated sales
employees that would want to opt into the lawsuit. Doc. 120, Defs.’ Resp. 21–22. Specifically,
Defendants argue that since the suit was filed in March 2014, no one has opted into the lawsuit, one
named plaintiff nonsuited his claims, and Plaintiffs stated in their depositions that they have not
spoken to current or former Silverleaf employees about the lawsuit. Doc. 120, Defs.’ Resp. 22.
As addressed above, the Court found that only those sales employees who worked at The
Villages, Lake O’ The Woods, Piney Shores, and Fox River are similarly situated. Even if a larger
pool of potential class members were similarly situated, Plaintiffs would have failed to establish that
there were sales employees at the other resorts interested in joining the suit. To be sure, Plaintiffs
believe that others would be interested in joining. But that is not enough to make even a minimal
Plaintiffs have, however, met their burden of establishing that there is interest at The
Villages, Lake O’ The Woods, Piney Shores,16 and Fox River by virtue of having worked at those
The Court is aware that besides Piney Shores, Plaintiff Parker stated that he worked at Apple
Mountain and Seaside. Doc. 117-2, Pls.’ App. 38. But as discussed above, it appeared from his deposition
testimony that his primary location was Piney Shores. Defendants stated that Parker worked only at Piney
Shores, and Plaintiffs do not rebut this contention in their Reply. The Court finds, then, that Parker’s
personal knowledge is lacking and Plaintiffs otherwise failed to establish that sales employees at Seaside or
Apple Mountain were similarly situated to Plaintiffs. Therefore, the Court need not consider whether any
time Parker spent at Apple Mountain or Seaside would amount to the Court finding that others from those
resorts would be interested in opting in to the suit.
- 28 -
locations themselves. See McKnight, 756 F. Supp. 3d at 807; see also Harper, 185 F.R.D. at 363–65
(allowing notice to a portion of the proposed class when the evidence did not support notification
for the entire proposed class). Therefore, Plaintiffs have established the third element with regard
to only The Villages, Lake O’ The Woods, Piney Shores, and Fox River.
As discussed above, the Court finds that Plaintiffs have produced more than minimal
evidence to establish that they are similarly situated with putative plaintiffs with regard to four resort
locations. See Mooney, 54 F.3d at 1213–14. Plaintiffs’ declarations and depositions establish that sales
employees of The Villages, Lake O’ The Woods,17 Piney Shores, and Fox River (collectively the Four
Resorts) were similarly situated. Plaintiffs failed to establish, however, that after Orange Lake
acquired Silverleaf, sales employees were treated in the same way. Therefore, the Court finds it
appropriate to GRANT Plaintiffs’ Motion for Certification but limits Plaintiffs’ proposed definition.
The Court conditionally certifies a class consisting of: (1) current and former sales employees whose
primary responsibility was to sell timeshare interests as part of their regular duties—in other words,
Outside Sales employees; (2) who were paid on the basis of commissions; (3) who worked at any of
the Four Resorts; and (4) who were employed at some time prior to Orange Lake’s acquisition18 of
Even though Defendants do not list Lake O’ The Woods as a current Silverleaf resort, the Court
finds it appropriate to include it in the class. Because the Court is excluding from the class sales employees
who worked only under Orange Lake, any sales employee from Lake O’ The Woods who might be included
would have worked there while it was likely considered a Silverleaf resort under Cerberus. Therefore, it is not
inconsistent to include sales employees from Lake O’ The Woods and furthermore, as Jackson stated that
Lake O’ The Woods did not have its own sales team, it is unlikely that its inclusion in the class will produce
any additional plaintiffs.
While Orange Lake acquired Silverleaf in May 2015, Defendants’ Response appears to assert that
the resorts continued operating under Silverleaf policies until they were individually rebranded. See Doc. 120,
Defs.’ Resp. 4. The Villages was rebranded on May 5, 2016. Id. Fox River was rebranded on October 28,
- 29 -
The Class Period
An FLSA claim “may be commenced within two years after the cause of action accrued
. . . except that a cause of action arising out of a willful violation may be commenced within three
years after the cause of action accrued.” 29 U.S.C. § 255(a). The “limitations period is not tolled
with respect to other potential plaintiffs unless and until they opt in to the case.” Quintanilla v. A&R
Demolition, Inc., No. H-04-1965, 2005 WL 2095104, at *15 (S.D. Tex. Aug. 30, 2005).
The Court finds that the limitations period should be confined to sales employees who
worked for Silverleaf, under the umbrella of Cerberus and not Orange Lake, in the three years before
the date the Court conditionally certifies the class. Id. at *16. Therefore, the relevant class period
will be from three years prior to the date of this Order until the date of Orange Lake’s acquisition.19
The Opt-In Period
Plaintiffs request a 90-day period from the date Defendants produce contact information for
putative plaintiffs to opt-in. Doc. 116, Pls.’ Mot. for Certification 20. The Court finds that 60 days
form the date Defendants produce the contact information to be appropriate. See McCloud, 2015 WL
757024, at *10 (noting that opt-in periods “commonly range from as little as 30 to as many as 120
days” and that “most courts appear to default to a notice period of 60 days, unless potential plaintiffs
2015. Id. And Piney Shores was rebranded on April 14, 2016. Id. Thus, in order to be cautious, the Court
determines that for purposes of conditional certification, the time Orange Lake “acquired” each Silverleaf
resort is the date of rebranding. As Defendants do not mention Lake O’ The Woods and because the Court
cannot easily discern the specific day on which Orange Lake acquired Silverleaf, it considers May 31, 2015
as the date Lake O’ The Woods was acquired. At the decertification stage, Defendants are not precluded
from arguing that the time of acquisition for all resorts should be limited to a specific date in May 2015.
See supra note 18 for the date of acquisition.
- 30 -
are difficult to contact because of their locations or other extenuating factors warrant additional
For the foregoing reasons, Defendants’ Motion to Strike (Doc. 122) is DENIED. Plaintiffs’
Second Motion for Certification (Doc. 116) is GRANTED as follows:
The Court conditionally certifies this collective action;
The prospective class may include only: (1) all current and former sales employees
whose primary responsibility was to sell timeshare interests as part of their regular
duties—in other words, Outside Sales employees; (2) who were paid on the basis of
commissions; (3) who worked at any of the Four Resorts; and (4) who were employed
at some time between May 1, 2014 and the date of Orange Lake’s acquisition20 of
Defendants are ORDERED to produce the names and current or last known
addresses, of all individuals falling within the above defined class (Employee
Information). Defendants shall provide the Employee Information in an electronic
form that can be used by Plaintiffs in mailing out the Notice. If the information is not
stored electronically, Defendants shall provide it in written form.
The Court ORDERS Defendants to produce the Employee Information no later than
Monday, May 15, 2017. If Defendants fail to provide the Employee Information by
See supra note 18 for the date of acquisition.
- 31 -
that date, then the statute of limitations will be equitably tolled for each day after
May 15, 2017 that Defendants fail to provide the Employee Information.
The partes are further ORDERED to confer and submit an agreed Proposed Notice
form as well as an agreed Proposed Consent to Join Form no later than Monday,
May 15, 2017.
The opt-in period will last until 60 days following the date Defendants produce the
SIGNED: May 1, 2017.
- 32 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?