Arceneaux et al v. Fitness Connection Option Holdings, LLC et al

Filing 50

MEMORANDUM AND ORDER DENIED without prejudice 38 MOTION to Certify Class (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

WESLEY ARCENEAUX, et. al.,
Plaintiffs,
v.
FITNESS CONNECTION OPTION
HOLDINGS, LLC, et. al.,
Defendants.

§
§
§
§
§
§
§

November 28, 2017
David J. Bradley, Clerk

CASE NO. 4:16-CV-3418

MEMORANDUM AND ORDER
This Fair Labor Standards Act (“FLSA”) case is before the Court on the
Motion for Conditional Certification of a Collective Action and Authorization for
Class Notice (“Motion”) [Doc. # 38] filed by Plaintiffs Wesley Arceneaux, Jr.,
Samuel Barnhardt, Adam Bellinger, Jose Benitez, Ramiro Berrones, Ethan
Callahan, Damon Hodge, Willis Holman, Dwayne Jones, Herman McCord, Ike
Miller, Randy Reyna, LaDerrick Stills, Sunshine Thornton, William Valk, Candace
Weaver and John Yarbrough. Defendants Titan Fitness, LLC, Titan Fitness Texas,
LLC, Titan Fitness NC-Charlotte, LLC, and Titan Fitness North Carolina
(collectively, “Titan” or “Defendants”) filed a Response [Doc. # 42], and Plaintiffs
filed a Reply [Doc. # 48]. Having carefully reviewed the record and the applicable

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legal authorities, the Court concludes that the pending Motion should be denied
without prejudice.1
I.

BACKGROUND
Defendants own and operate fitness clubs in Texas, North Carolina and

Nevada under the name “Fitness Connection.” Each of the Plaintiffs is or was
employed by one of the Defendants in either Texas or North Carolina.

All

Plaintiffs allege that they regularly worked in excess of forty hours a week
throughout the course of their employment with Defendants. Collectively, the
Plaintiffs have held numerous different positions as Defendants’ employees.2

1

Defendants have also filed a Motion for Leave to File a Sur-Reply (the “Motion
For Leave”) [Doc. # 49]. Because the Court concludes that the Motion should be
denied irrespective of Defendants’ proposed sur-reply, the Motion for Leave is
denied as moot.

2

As alleged in Plaintiffs’ First Supplemental and Amended Complaint (the
“Complaint”) [Doc. # 41], each Plaintiff holds or has held the following positions
while employed by Defendants: (1) Arceneaux – Assistant General Manager; (2)
Barnhardt – Fitness Manager; (3) Bellinger – Fitness Manager and District Fitness
Manager; (4) Berrones – Assistant Fitness Manager, Assistant General Manager
and Membership Manager; (5) Benitez – Assistant General Manager; (6) Callahan
– Assistant General Manager and Fitness Manager; (7) Hodge – General Manager;
(8) Holman – Fitness Manager and District Fitness Manager; (9) Jones –
Membership Manager and General Manager; (10) McCord – Assistant General
Manager; (11) Miller – General Manager; (12) Reyna – Fitness Manager; (13)
Stills – General Sales Manager; (14) Thornton – Fitness Manager; (15) Valk –
Fitness Manager; (16) Weaver – Fitness Manager; and (17) Yarbrough – Fitness
Consultant, Assistant General Manager, General Manager, Membership Manager,
and Operations Manager. Complaint [Doc. # 41], ¶¶ 3-19 at ECF 2-12.

2
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The gravamen of Plaintiffs’ Motion is that Defendants have violated the
FLSA in two ways. First, Defendants have allegedly misclassified employees with
certain “managerial” titles as being exempt from the FLSA’s overtime
compensation requirements, and as a result, Defendants have improperly denied
those misclassified individuals overtime pay. More specifically, Plaintiffs contend
that, notwithstanding their titles as “managers” while employed by Defendants,
they spent the majority of their time engaged in sales activities that are not
considered “exempt” under the FLSA. Plaintiffs reason that they are therefore
entitled to overtime compensation for their work in excess of forty hours a week.3
To address Defendants’ alleged misclassification of these individuals, Plaintiffs
seek conditional certification of the following class:
All person(s) who were/are employed by [Defendants], during the
applicable period (Plaintiff[s] contend[ ] three years from the date the
original complaint was filed: 11-18-2013 to present), as Operations
Manager, General Manager, Assistant General Manager, General
Sales Manager, Membership Manager, District Fitness Manager,
Fitness Manager and Assistant Fitness Manager who were declared
exempt from FLSA overtime compensation requirements.
Motion [Doc. # 38], at ECF 8 (the “Manager Class”).

3

See Motion [Doc. # 38], at ECF 8-9 (“Despite the position description and title,
the primary duty of these ‘management positions’ was/is inside sales which are
non-exempt to the overtime compensation provisions required by the FLSA.”).

3
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Second, Plaintiffs contend that Defendants skirted their obligations under the
FLSA by requiring certain employees who are classified as non-exempt to work
“off the clock,” specifically, requiring them to perform duties before they clocked
in or to continue to work after they clocked out, without overtime pay. To address
Defendants’ alleged policy of requiring “off the clock” work, Plaintiffs also seek
conditional certification of the following class:
All person(s) who were/are employed by [Defendants], during the
applicable period (Plaintiff[s] contend[ ] three years from the date the
original complaint was filed: 11-18-2013 to present), as Fitness
Consultants and Private Trainers who were declared non-exempt from
FLSA overtime compensation requirements but were required to work
in excess of 40 hours per week and not paid time and a half for all
work performed in excess of 40 hours (“off the clock violation”).
Motion [Doc. # 38], at ECF 8 (the “Non-Exempt Class” and, together with the
Manager Class, the “Proposed Classes”).
Plaintiffs, in support of their Motion, rely on evidence, such as their own
sworn declarations,4 documents produced by Defendants,5 and deposition

4

See Arceneaux Declaration [Doc. # 38-5]; Barnhardt Declaration [Doc. # 38-6];
Benitez Declaration [Doc. # 38-7]; Berrones Declaration [Doc. # 38-8]; Callahan
Declaration [Doc. # 38-9]; Hodge Declaration [Doc. # 38-10]; Holman
Declaration [Doc. # 38-11]; McCord Declaration [Doc. # 38-12]; Miller
Declaration [Doc. # 38-13]; Stills Declaration [Doc. # 38-14]; Valk Declaration
[Doc. # 38-15]; Jones Declaration [Doc. # 38-16]; Weaver Declaration
[Doc. # 38-17]; Reyna Declaration [Doc. # 38-18]; and Yarbrough Declaration
[Doc. # 38-19].

5

See Fitness Connection Position Descriptions [Doc. # 38-2] and [Doc. # 38-3].

4
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testimony.6 The Motion has been fully briefed and is now ripe for decision.
II.

APPLICABLE LEGAL STANDARDS
A.

FLSA Obligations

The FLSA provides that “no employer shall employ any of his employees
. . . for a workweek longer than forty hours unless such employee receives
compensation for his employment in excess of the hours above specified at a rate
not less than one and one-half times the regular rate at which he is employed.”
29 U.S.C. § 207(a)(1). An employee may sue his employer under the FLSA on
“behalf

of

himself

.

.

.

and

other

employees

similarly

situated.”

29 U.S.C. § 216(b). Similarly situated employees can “opt-in” to a lawsuit under
§ 207(a) to benefit from a judgment.
B.

Standard for Conditional Certification

When considering whether to certify a lawsuit under the FLSA as a
collective action, courts in this federal district generally use a “two-stage
approach.” See Austin v. Onward, LLC, 161 F. Supp. 3d 457, 461 (S.D. Tex.
2015); see also Caballero v. Kelly Servs., Inc., Civil Action No. H–14–1828, 2015
WL 12732863, *3 (S.D. Tex. Oct. 5, 2015); Diaz v. Applied Machinery Corp.,
Civil Action No. H-15-1282, H-15-2674, 2016 WL 3568087, *4 (S.D. Tex. June
6

See Deposition of Josh Harwood [Doc. # 38-1]; Deposition of Jason Pelt
[Doc. # 38-3]; and Deposition of Sunshine Thornton [Doc. # 48-1]

5
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24, 2016); Walker v. Honghua Am., LLC, 870 F. Supp. 2d 462, 465 (S.D. Tex.
2012). At the first stage, the Court decides whether to conditionally certify a class
into which individuals may opt if they seek to benefit and be bound by the outcome
of the case. At this stage, in essence, the Court is deciding whether to issue notice
to potential class members. See Walker, 870 F. Supp. 2d at 465. The second stage
occurs when discovery is largely complete. If it chooses, the defendant may move
to “decertify” the conditionally certified class. See id. at 466. “Neither stage of
certification is an opportunity for the court to assess the merits of the claim by
deciding factual disputes or making credibility determinations.” McKnight v. D.
Houston, Inc., 756 F. Supp. 2d 794, 802 (S.D. Tex. 2010).
At the notice stage, the Court’s decision is generally based on the pleadings,
affidavits, and other limited evidence. Mooney v. Aramco Servs. Co., 54 F.3d
1207, 1214 (5th Cir. 1995), overruled on other grounds by Desert Palace, Inc. v.
Costa, 539 U.S. 90 (2003); Walker, 870 F. Supp. 2d at 465. At this stage, the
plaintiff is required to show that “(1) there is a reasonable basis for crediting the
assertions that aggrieved individuals exist, (2) that those aggrieved individuals are
similarly situated to the plaintiff in relevant respects given the claims and defenses
asserted, and (3) that those individuals want to opt-in to the lawsuit.” Walker, 870
F. Supp. 2d at 465-66; see also Andel v. Patterson-UTI Drilling Co., LLC, 280
F.R.D. 287, 289 (S.D. Tex. 2012). “Although collective actions under the FLSA
6
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are generally favored, the named plaintiff(s) must present some factual support for
the existence of a class-wide policy or practice.” Carey v. 24 Hour Fitness USA,
Inc., 2012 WL 4857562, at *1 (S.D. Tex. Oct. 11, 2012) (citing Walker, 870 F.
Supp. 2d at 466).

Conclusory allegations that other employees are similarly

situated are insufficient to justify conditional certification. Rodriguez v. Flower
Foods, Inc., Civil Action No. 4:16–CV–245, 2016 WL 7210943, at *2 (S.D. Tex.
Dec. 13, 2016).
To be “similarly situated,” there must be “substantial allegations that
potential members ‘were together the victims of a single decision, policy, or
plan.’” McKnight, 756 F. Supp. 2d at 801 (quoting Mooney, 54 F.3d at 1213).
Certification should be denied “‘if the action arises from circumstances purely
personal to the plaintiff, and not from any generally applicable rule, policy, or
practice.’” Id. (quoting England v. New Century Fin. Corp., 370 F. Supp. 2d 504,
507 (M.D. La. 2005)). Where minimal evidence is advanced at the notice stage,
the conditional class determination “is made using a fairly lenient standard, and
typically results in ‘conditional certification’ of a representative class” that
provides potential class members with notice and the opportunity to opt in. See id.
(quoting Mooney, 54 F.3d at 1214 n.8); see also Walker, 870 F. Supp. 2d at 465.
Where the parties have conducted substantial discovery in connection with
class certification, however, some courts have applied a more exacting level of
7
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scrutiny rather than the lenient one typically associated with the notice stage. See,
e.g., Hardemon, 2011 WL 3704746, at *2 (“The voluminous discovery that the
[p]arties have already conducted in connection with class certification in this
matter . . . merits a heightened level of scrutiny . . .”); 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 this matter.”). These courts have made factual determinations to
determine whether the claimants are similarly situated based on the totality of the
circumstances.

See Hardemon, 2011 WL 3704746, at *3 (citations omitted).

Because the parties here have conducted some discovery on the conditional
certification issues, this Court has considered applying a more exacting standard,
rather than the “lenient” one advocated by Plaintiffs. Nevertheless, the Court does
not use a heightened burden; the Court evaluates the parties’ evidence and
argument under the lenient standard typically applied in this circuit.
III.

ANALYSIS
Plaintiffs contend that the Court should conditionally certify both the

Manager Class and the Non-Exempt Class.

The Court will consider the

requirements for conditional certification with respect to each of the Proposed
Classes separately.
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A.

Non-Exempt Class
1.

Evidence that Other Aggrieved Individuals Exist

To satisfy the first element under the analysis Plaintiffs need only show that
there is a reasonable basis for believing that other aggrieved individuals exist. See
Heeg, 907 F. Supp. 2d at 862. Plaintiffs, however, have failed to carry their
minimal burden with respect to this element. The Non-Exempt Class consists of
employees with one of two job titles: private trainer or fitness consultant. No
Plaintiff is, or ever was, a private trainer. Only one Plaintiff, Yarbrough, ever was
employed by Defendant as a fitness consultant.

In his sworn declaration,

Yarbrough avers that he routinely worked over forty hours per week as a fitness
consultant, but does not identify any other fitness consultants who did the same.
Yarbrough Declaration [Doc. # 38-19], ¶ 6 at ECF 2. Moreover, while Yarbrough
names four individuals who he believes would be interested in joining this lawsuit,
none of those individuals are identified as being, or having been, fitness
consultants. Id., ¶ 7 at ECF 2.7 Yarbrough’s failure to identify the positions of the
individuals he believes would be willing to join the lawsuit is significant because
he is a member of both of the Proposed Classes, and without any such specificity,

7

The same is true of the other fourteen declarations that Plaintiffs have submitted in
support of their Motion. Not one of the declarants identifies any fitness
consultants or private trainers who have allegedly been aggrieved by Defendants.

9
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it is unknown which of the Proposed Classes those individuals are willing to join.
Plaintiffs cite no competent evidence that would allow the Court to draw a
reasonable inference that Defendants violated FLSA rights of any of its private
trainer or fitness consultant employees other than Yarbrough. Based on the current
record, Plaintiffs have not satisfied the first element for conditional certification
with respect to the Non-Exempt Class. See Heeg, 907 F. Supp. 2d at 862; cf.
Rodriguez, 2016 WL 7210943, at *2 (“[t]o show that there are similarly situated
employees, a plaintiff would ideally produce affidavits from potential class
members affirming their intention to join the lawsuit.”) (citing McKnight, 756 F.
Supp. 2d at 805 (S.D. Tex. 2010)).
2.

Existence of Similarly Situated Individuals

To be “similarly situated,” there must be “‘substantial allegations that
potential members were together the victims of a single decision, policy, or plan.’”
Caballero v. Kelly Servs., Inc., Civil Action No. H–14–1828, 2015 WL 12732863,
at *3 (S.D. Tex. 2015) (quoting McKnight, 756 F. Supp. 2d at 801). Additionally,
“[f]or the class representative to be considered similarly situated to the potential
opt in class members, the class representative must be similarly situated in terms of
job requirements and similarly situated in terms of payment provisions.” Vanzzini
v. Action Meat Distribs., Civil Action No. H–11–4173, 2012 WL 1941763, at *3
(S.D. Tex. May 29, 2012) (quoting Ryan v. Staff Care, Inc., 497 F. Supp. 2d 820,
10
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825 (N.D. Tex. 2007)). “Plaintiffs ‘need only show that their positions are similar,
not identical, to putative plaintiffs.’” Walker, 870 F. Supp. 2d at 468 (quoting
Jesiek v. Fire Pros, Inc., 275 F.R.D. 242, 246 (W.D. Mich. 2011)). However, “if
the job duties among potential members of the class vary significantly, then class
certification should not be granted.”

See Dreyer, 2008 WL 5204149, at *2

(emphasis in original).
Off the Clock Contentions – Plaintiffs allege that Defendants had an
impermissible policy of expecting non-exempt employees to “work off the clock,”
by making sales calls, attending meetings or completing work assignments at the
workplace while not being clocked in, without receiving overtime pay. There is no
dispute that, at all times relevant to this lawsuit, Defendants have had a formal
wage and hour policy that requires non-exempt employees to accurately record
their time by “checking-in and out at the beginning and end of shifts and meal
breaks.”8 The policy stated that employees who falsify their time sheets are subject
to disciplinary action, including termination.9 Notwithstanding Defendants’ formal
policy, Plaintiffs contend that Defendants had a “uniform policy” of requiring
members of the Non-Exempt Class to take certain work home with them or

8

Arterberry Declaration [Doc. # 42-1], at ECF 46.

9

Id.

11
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otherwise work “off the clock.”

Plaintiffs also allege that Defendants

systematically altered employee time cards to avoid having to pay those employees
overtime compensation.10
Of the seventeen Plaintiffs currently party to this lawsuit, only one,
Yarbrough, is alleged to have been classified as non-exempt at any time during
employment with Defendants.11

There is no evidence that Yarbrough, while

10

To the extent that Plaintiffs argue that one or more of Defendants’ policies also are
applicable to the Manager Class, the arguments are not pertinent at this juncture.
As exempt employees, members of the Manager Class would not be entitled to
overtime compensation for working “off the clock” unless they were misclassified.

11

Plaintiffs’ only purported proof that Defendants had a uniform policy of requiring
non-exempt employees to work “off the clock” is the deposition testimony of
Plaintiff Thornton. See Reply [Doc. # 48], at ECF 4-6. There are no allegations or
evidence that Thornton was ever classified as non-exempt. Complaint [Doc.
# 41], ¶ 16 at ECF 10. According to the Reply, Thornton has been employed by
Defendants as an Assistant Fitness Manager and a Fitness Manager. Id. at ECF 5.
In the Complaint, Thornton is alleged to be employed by Defendants as a Fitness
Manager. Complaint [Doc. # 41], ¶ 16 at ECF 10.
The discrepancy between Plaintiffs’ Complaint and assertions in the Reply is also
indicative of a larger issue with the Motion: the lack of clarity as to whether
Defendants classified Assistant Fitness Managers as exempt or non-exempt.
Plaintiffs specifically allege at least three times in the Complaint that Defendants
classified Assistant Fitness Managers as exempt. Complaint [Doc. # 41], ¶¶ 6, 24,
34 at ECF 4, 13, 14. Plaintiffs repeatedly maintain that position in the Motion.
Motion [Doc. # 38], at ECF 7, 8, 11, 12, 16. Berrones, the only Plaintiff in this
case who was both employed as an Assistant Fitness Manager and submitted a
sworn declaration, avers in his declaration that as an Assistant Fitness Manger, he
“was classified as an exempt salaried employee.” Berrones Declaration [Doc.
# 8-8], ¶ 4 at ECF 1. Defendants contend in their Response that Assistant Fitness
Managers are classified as non-exempt, Response [Doc. # 42], at ECF 9. Plaintiffs
do not explicitly address this contention in their Reply and continue to assert that it
is “undisputed that all times pertinent herein [Defendants] classified their . . .
(continued…)

12
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classified as non-exempt, was aggrieved by any of Defendants’ purportedly
improper “off the clock” policies for non-exempt employees. With respect to
Defendants’ alleged policy of requiring members of the Non-Exempt Class work
“off the clock,” Plaintiffs cite no evidence that Yarbrough suffered from this
alleged policy. The excerpts of Yarbrough’s deposition testimony that are in the
record demonstrate that Yarbrough is not asserting claims in this lawsuit that he
was required to work “off the clock” while he was classified as non-exempt.12
There is also no evidence that Yarbrough was required to “work off the
clock” by taking work home with him so he could complete it after he had clocked
out. While there is some evidence in the record that Personal Trainers were at

(continued…)
Fitness Managers, and Assistant Fitness Managers as FLSA Exempt.” Reply
[Doc. # 48], at ECF 6. For purposes of deciding the Motion, the Court, consistent
with Plaintiffs’ pleadings and the declarations they have provided in support
thereof, assumes Defendants classified Assistant Fitness Managers as exempt.
12

See Yarbrough Deposition [Doc. # 43-5], at ECF 3 (stating he is not claiming he is
owed overtime for his work as an Operations Manager); id. at ECF 4 (“Q: My next
question, though, is did you work off the clock when you were a fitness
consultant? A: Not to my knowledge.”). Although Yarbrough states in his
declaration that he “was frequently required to work before and/or after clocking
in,” and that he was told that he “should always be available” irrespective of
whether or not he was “on the clock,” Yarbrough Declaration [Doc. # 38-19], ¶ 3
at ECF 1, there is no evidence that these statements refer to his time as a nonexempt, rather than exempt, employee.

13
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times required to take client folders home to work on them “off the clock,”13 none
of the Plaintiffs in this case, including Yarbrough, were ever employed by
Defendants as a Personal Trainer. Plaintiffs cite no evidence that any employees
other than Personal Trainers were ever required to work on client folders at home.
Therefore,

even

assuming

Plaintiffs

adequately

demonstrated

that

Defendants have a single policy of requiring members of the Non-Exempt Class to
work “off the clock,” either by working at the gym or at their home while not
clocked in, Plaintiffs’ Motion fails for that proposed class because Plaintiffs have
offered no evidence that the lone Plaintiff alleged to have been classified as nonexempt in this case was aggrieved by that policy.
Alterations of Timecards Contentions – Turning to Defendants’ alleged
practice of altering non-exempt employees’ time cards to avoid having to pay
overtime compensation, there is some evidence in the record that Yarbrough was
adversely affected by such conduct.14 The key inquiry for purposes of the Motion
is whether Yarbrough was the victim of a “single decision, policy, or plan”
13

See Pelt Deposition [Doc. # 42-9], at ECF 6-7; Callahan Deposition [Doc. # 43-1],
at ECF 11.

14

See Yarbrough Deposition [Doc. # 43-5], at ECF 4 (“but it doesn’t take into the
[sic] account the fact that the managers were going back and editing our time to
remove the hours because overtime wasn’t allowed unless it was approved, and
they were being written up for it.”); id. (“Q: Okay. So I just want to make sure I’m
clear. You’re saying even though – so, even though you got paid some of this
overtime, there was more and it was edited away; is that right? A: Correct.”)

14
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effectuated by Defendants. Plaintiffs’ construction of the Non-Exempt Class is
intended to encompass all Fitness Consultants and Private Trainers at all gyms
owned and operated by Defendants in Texas, North Carolina and Nevada.
Plaintiffs have failed to present factual support of a nationwide policy or practice
of time card alterations. The minimal evidence cited by the parties on this issue is
limited to occurrences in Texas.15 Plaintiffs cite no facts supporting a reasonable
inference that these practices occurred at Defendants’ locations in North Carolina
or Nevada.16 In contrast, Jason Pelt, a former Vice President of Fitness and
Regional President for Defendants and on whose testimony Plaintiffs rely heavily
in the Motion, stated in his deposition that in the one instance he was aware of
where an employee deliberately altered time cards, that employee was
15

See Thornton Deposition [Doc. # 48-1], at ECF 8-10 (describing practice of
editing Assistant Fitness Manager time cards pursuant to instructions from
Plaintiff Holman. Both Thornton and Holman were only employed by Defendants
in Texas); Arceneaux Deposition [Doc. # 43-2], at ECF 5 (stating that his overtime
hours were reduced at the direction of Defendants’ President and Vice President of
the Texas market).

16

More generally, the Court notes that none of the Plaintiffs are alleged to have
worked in Nevada and Plaintiffs do not offer any factual support for any of their
assertions regarding Defendants’ operations in Nevada. Plaintiffs have not carried
their burden of demonstrating that conditional certification would be appropriate
as to any of Defendants’ current or former employees in Nevada. While Plaintiffs
have submitted evidence that Plaintiffs Barnhardt, Callahan, Miller and Thornton
were employed by Defendants in North Carolina at some point during the relevant
period and have alleged that those individuals were misclassified as exempt,
Plaintiffs do not cite any competent evidence that any of these Plaintiffs had their
time cards altered while they were working for Defendants in North Carolina.

15
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disciplined.17 Although Pelt’s testimony is by no means dispositive of the issue of
whether Defendants had an impermissible practice of editing its non-exempt
employees’ time cards, given Plaintiffs’ extensive reliance on his deposition and
failure to otherwise present facts supporting a reasonable inference that Yarbrough
had his time cards edited pursuant to a widespread policy or practice of
Defendants’, it is persuasive evidence that Plaintiffs are not entitled to the broad
conditional certification they seek here.
Accordingly, Plaintiff Yarbrough cannot serve as class representative for
any claims based on Defendants’ purported policy of requiring non-exempt
employees to work “off the clock.” Without a representative plaintiff, conditional
certification of a class based on such policy is not warranted. See England v. New
Century Fin. Corp., 370 F. Supp. 2d 504, 507 (M.D. La. 2005) (“To certify a
collective action under the Fair Labor Standards Act, two requirements must be
met. First, the named representatives and the putative members of the prospective
FLSA class must be similarly situated.”). The record before the Court does not
support a reasonable inference that Yarbrough or other Plaintiffs were aggrieved
by any such policy. Additionally, Plaintiffs have not met their burden to produce
facts that support a reasonable inference that the editing of Yarbrough’s time cards

17

Pelt Deposition [Doc. # 38-4], at ECF 16-17.

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was pursuant to Defendants’ “single decision, policy, or plan.” Plaintiffs have not
satisfied either the first or the second element of their conditional certification
claim for the Non-Exempt Class and the Motion is denied without prejudice with
respect to that class.
The Court turns to conditional certification analysis for Plaintiffs’ proposed
Manager Class.
B.

Manager Class
1.

Evidence that Other Aggrieved Individuals Exist

Plaintiffs have met their burden regarding the Manager Class to demonstrate
that there is a reasonable basis to believe other aggrieved individuals exist. In their
Response, Defendants do not contest Plaintiffs’ satisfaction of this element
regarding the Manager Class. Plaintiffs are seventeen individuals with “manager”
titles who have held a variety of positions in different facilities owned and operated
by Defendants. There is no dispute that Plaintiffs do not comprise the entirety of
the “managers” employed by Defendants during the relevant period.

Fifteen

Plaintiffs have submitted sworn declarations averring that there are others
interested in joining this lawsuit.18 According to these declarations, Plaintiffs have
18

Plaintiffs have not identified the jobs held by the others they claim seek to join the
suit, a deficiency in Plaintiff’s evidence. However, in context, as described in the
accompanying text, this omission is not fatal to Plaintiffs satisfying this element of
the class certification test.

17
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held different “managerial” titles under the supervision of different managers and
executives at different locations owned and operated by Defendants. Plaintiffs
each aver they were similarly misclassified as FLSA exempt given their primary
role as salespeople. The diverse circumstances under which Plaintiffs explain they
were misclassified as exempt employees supports a reasonable inference at this
preliminary stage of the ligation that the alleged misclassifications were not
isolated, employee specific issues. That, viewed together with the fact that all
Defendants’ managers, including those who are not Plaintiffs, are allegedly
classified as exempt and the other evidence that has been submitted in connection
with the Motion, further bolsters the Court’s conclusion that there is a reasonable
basis to believe that other potential members of the Manager Class exist. The first
element for conditional certification is satisfied for the proposed Manager Class.
2.

Existence of Similarly Situated Individuals

For purposes of the Motion, the Court assumes that Plaintiffs have
sufficiently alleged the existence of an impermissible policy with regard to the
Manager Class. Specifically, the Court assumes that Plaintiffs have made an
adequate showing at this preliminary stage of the litigation that Defendants
misclassified members of the Manager Class as exempt employees under the FLSA
in order to avoid paying those individuals overtime. The more difficult question,
and the focus of Defendants’ Response, is the extent to which the members of the
18
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Manager Class share similar job duties.
On its face, Plaintiffs’ effort to consolidate varied job titles into a single
class is problematic. The Manager Class consists of employees with eight different
job titles. Although Plaintiffs make the conclusory assertion that all individuals
with the numerous different job titles encompassed by the Manager Class are
“similarly situated with respect to their job requirements and with regard to their
pay provisions,” they fail to cite any competent evidence or authority in support of
their position. For example, Plaintiffs offer no explanation as to how a General
Manager, who is responsible for a fitness center’s overall performance,19 has
similar job duties to an Assistant Fitness Manager, who sells personal training
services and is subject to the supervision of the General Manager and Fitness
Managers.20

It is also unclear why it is appropriate for the Manager Class

definition to include Operations Managers, who have been classified as nonexempt in Texas since September 2016.21 Plaintiffs’ provide no justification for

19

See Miller Declaration [Doc. 38-13], ¶ 3 at ECF 1 (stating duties of General
Manager included “oversee[ing] the daily operations of the club); Jones
Declaration [Doc. 38-16], ¶ 3 at ECF 1 (“My job duties as General Manager are to
manage the overall profits and losses of the location.”).

20

Arterberry Declaration [Doc. 42-1], ¶ 8 at ECF 3-4.

21

Arterberry Declaration [Doc. 42-1], ¶ 10 at ECF 4-5. The Court also notes that
Plaintiffs have not alleged in the Complaint, which was filed after the Motion, that
Operations Managers were misclassified. Nor are there any allegations in the
Complaint that District Fitness Managers are misclassified. See generally
(continued…)

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potentially including non-exempt employees in a class whose entire premise is to
represent individuals who have allegedly been misclassified as exempt.
Of Plaintiffs’ fifteen sworn declarations in support of their Motion, four
(those of Plaintiffs Berrones, Callahan, Holman, and Yarbrough) were by Plaintiffs
who have held more than one of the job titles covered by the proposed Manager
Class.

Plaintiffs’ descriptions of their responsibilities reveal a likelihood of

meaningful differences among their various positions.22

Plaintiffs’ own

(continued…)
Complaint [Doc. # 41]. Plaintiffs cite no authority to support their argument that
individuals who are not alleged in the Complaint to be misclassified are
appropriate members of the Manager Class.
22

See Berrones Declaration [Doc. # 38-8], ¶ 3 at ECF 1 (“My job duties as Assistant
Fitness Manager were to sell to get paid, in other words commission, but also train
the trainers underneath you, and control their schedule. I was also an Assistant
General Manager which mainly focused on selling memberships, taking care and
supervising the Fitness Consultants, but also take care of the whole gym,
especially when there was no GM. And finally, they changed the name to
Membership Manager, which is still mainly selling memberships, but also
developing and take care of the fitness consultants underneath you.”); Callahan
Declaration [Doc. # 38-9], ¶ 3 at ECF 1 (“My job duties as Assistant General
Manager were to manage 2-4 fitness counselors, train and develop each of them
constantly. Required to sell a minimum of 100 memberships throughout the
month. Keep books on membership side for entire gym, audit all books from the
GM, myself and each of my fitness counselors . . . . My job duties as Fitness
Manager were to manage 10-12 personal trainers and 2 others on my sales team.
Was responsible for the majority of the sales of personal training. Audit each
trainers folders on each and every client. Keep my own books for the entire
club.”); Yarbrough Declaration [Doc. # 38-19], ¶ 3 at ECF 1 (“My job duties as
Fitness Consultant, Assistant General Manager, General Manager, Membership
Manager and Operations Manager have varied from calling customers, managing
and training other staff members, assisting with customer problems, selling
products and general retail management.”); Holman Declaration [Doc. # 38-11], ¶
(continued…)

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descriptions contain significant differences in job duties among the distinct job
titles encompassed by the proposed Manager Class.

These distinctions are

consistent with Defendants’ evidence that employees covered by the Manager
Class are not similarly situated.23 While Plaintiffs need not have “identical” job
duties to be “similarly situated,” Plaintiffs’ proposed Manager Class plainly
involves jobs with material distinctions in positions’ authority and managerial
responsibilities, issues that are at the heart of Plaintiffs’ misclassification claim.
Therefore, even under the lenient standard for conditional certification, Plaintiffs
have not carried their burden to demonstrate that the proposed members of the
Manager Class are similarly situated. The Motion is denied without prejudice on
(continued…)
2 at ECF 1 (“My job duties as Fitness Manager and District Fitness Manager were
sales, fitness assessments, customer service, payroll, selling personal training
packages, hiring, training, development of new sales team, sales calls, setting up
assessments by phone or on the gym floor.”). Although Holman’s descriptions
indicate similarities between the Fitness Manager and District Fitness Manager
positions, the descriptions ignore key differences such as reporting lines (District
Fitness Managers report to Regional Presidents whereas Fitness Managers report
to a location’s General Manager) and geographic scope of responsibility (District
Fitness Managers are responsible for supervising an assigned region whereas
Fitness Managers only have responsibilities in the location that they work). Fitness
Connection Position Descriptions [Doc. # 38-2], at ECF 1-4; Arterberry
Declaration [Doc. 42-1], ¶¶ 16-17 at ECF 6-7.
23

See Arterberry Declaration [Doc. 42-1], ¶¶ 4-17 at ECF 2-7 (describing
differences among the jobs included in Manger Class definition in Houston
locations); id. at ECF 11-20 (showing differences in compensation plans for
General Manager, Fitness Manager, and Assistant General Manager); Newbury
Declaration [Doc. 42-2], ¶¶ 4-5 at ECF 2-3 (confirming same differences are
applicable to manager positions in North Carolina locations).

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conditional certification of the Manager Class.
C.

Evidence of Other Likely Opt-Ins

Various courts, including this Court, also require a plaintiff seeking
conditional certification to present evidence of other similarly situated individuals
who want to opt into the lawsuit. See Jones v. Xerox Commercial Sols., LLC, Civil
Action No. 4:13–cv–650, 2013 WL 5945652, at *4 n.43 (S.D. Tex. Nov. 6, 2013)
(citing cases). Other courts do not impose this requirement. See Diaz v. Applied
Machinery Corp., Civil A. No. H-15-1282, H-15-2674, 2016 WL 3568087, at *4
(S.D. Tex. June 24, 2016). Generally, this factor is easily satisfied if there is some
evidence that others are likely to want to join the litigation. The Fifth Circuit has
not addressed this requirement.
While there are seventeen Plaintiffs, none of the declarations or other
evidence filed by Plaintiffs indicates the job title or FLSA classification of any
other individuals that are identified as interested in joining this lawsuit. There is
no need for certification of a collective action if the existing Plaintiffs are the only
individuals who seek to pursue FLSA claims, because Plaintiffs are already parties
to the case. The Court does not decide at this time whether this factor has been
satisfied for either proposed class.
D.

Request for Notice

Plaintiffs request court-authorized notice to members of the Proposed
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Classes announcing the right to opt into this suit to vindicate possible rights under
the FLSA. This request is denied as moot due to the Court’s denial of conditional
class certification.
IV.

CONCLUSION AND ORDER
Plaintiffs have not carried their burden to demonstrate that they are entitled

to conditional certification for either the Manager Class or the Non-Exempt Class.
For the foregoing reasons, it is hereby
ORDERED that Plaintiffs’ Motion [Doc. # 38] is DENIED without
prejudice.
Signed at Houston, Texas, this __ day of November, 2017.
28

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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