Bitner, Thomas et al v. Wyndham Vacation Resorts, Inc.
ORDER granting 36 Motion for Conditional Certification of Class; Denying as moot 80 Motion for Leave to File Reply to Plaintiffs' Response to Defendant's Notice of Supplemental Authority; Denying 82 Motion for Equitable Tolling. A telephonic scheduling conference will be held on July 30, 2014, at 2:00 p.m. with Magistrate Judge Crocker to reestablish deadlines. Signed by District Judge William M. Conley on 7/25/2014. (voc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
THOMAS BITNER and TOSHIA
PARKER, individually and on behalf of
those similarly situated,
OPINION & ORDER
WYNDHAM VACATION RESORTS, INC.
In this putative class and collective action, plaintiffs Thomas Bitner and Toshia
Parker allege defendant Wyndham Vacation Resorts, Inc. (“Wyndham”) maintained
policies that required its sales representatives to work off the clock and in excess of 40 hours
per week without proper minimum wage and overtime compensation in violation of the Fair
Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) and Wisconsin law. Plaintiffs now
ask the court to certify conditional classes of current and former Wyndham In-House Sales
Representatives and Discovery Sales Representatives, pursuant to 29 U.S.C. § 216(b).
Because plaintiffs have made the modest factual showing necessary for
conditional certification, the court will grant the motion and authorize notice subject to the
revisions noted in the opinion below.1
During the pendency of the motion for conditional certification, defendant filed a notice of
supplemental authority, to which plaintiff responded. Defendant then sought leave to reply. (Dkt.
#80.) In that motion, defendant identified its objection to plaintiff’s response. The court has read
and considered the arguments therein, and the motion to file an additional, longer reply is denied as
Defendant Wyndham Vacation Resorts, Inc. is a Delaware corporation with its
principal place of business in Orlando, Florida. Wyndham is in the business of developing,
marketing and selling vacation ownership interests. To conduct that business, Wyndham
employs sales representatives, whose primary job duty is to sell timeshare properties and/or
promotional packages for such properties. All sales representatives share that same central
duty, but their specific involvement in the process differs. In-House Sales Representatives
give tours to existing timeshare owners each morning and set up back-end meetings, to
occur later the same day, in order to sell property and packages.
Representatives make sales to potential buyers during sales meetings, which occur after the
buyers return from tours with In-House or Front Line Sales Representatives.
The named plaintiffs in this case are Thomas Bitner, who worked for Wyndham as
both an In-House Sales Representative and a Front Line Sales Representative,2 and Toshia
Parker, who worked for Wyndham as a Discovery Sales Representative. Both worked from
Wyndham’s only Wisconsin facility, which is located in the Wisconsin Dells.
II. Alleged Policies
Wyndham classifies all sales representatives as non-exempt from overtime and
minimum wage, and it pays them a recoverable hourly draw of $7.25 per hour plus
commissions on their sales.
When representatives earn a commission, the hourly draw
previously paid out is recovered from that commission. Wyndham sales representatives are
Bitner is bringing claims for his work as a Front Line Sales Representative individually, and
plaintiffs have not moved to conditionally certify a class of Front Line Sales Representatives.
required to keep track of their own hours and to get approval for all potential overtime
hours before they work more than 40 hours in a pay period.
Plaintiffs’ case centers on Wyndham’s alleged policy of preventing its In-House and
Discovery Sales Representatives from recording more than 40 hours in a week. Pursuant to
this policy, plaintiffs allege that they are required to clock out of Wyndham’s timekeeping
system: (1) at specific times in the day (for instance, after In-House Sales Representatives
complete their morning tours); and (2) whenever they are nearing 40 hours on the clock.
As one of approximately 25 In-House Sales Representatives at the Wisconsin Dells
facility, plaintiff Thomas Bitner avers that his primary duty was to sell Wyndham timeshare
ownership to existing timeshare owners.
To make sales, he gave tours of Wyndham
properties each morning, conducted “back end meetings” in the afternoon and evening, and
frequently followed up with prospective buyers by phone.
He avers that he clocked in
during his morning tours but was not on the clock for back-end meetings, follow-up phone
calls with customers, attending breakfasts and weekend events with customers and
attending meetings and trainings. As a result, Bitner avers that he routinely worked in
excess of 40 hours per workweek but almost never clocked in for more than 40 hours.
Bitner further avers that his managers (Tom Delmore, Christine Kwitek, Lance
Tinsely and Kyle Mayes) instructed him to clock out after his last morning tour and
observed him performing off-the-clock work afterward, including the back-end meetings,
phone follow-ups, and customer events.
Based upon his personal experience, he also
believes that the requirement of clocking out after morning tours applied equally to all InHouse Sales Representatives.
As one of approximately eight Discovery Sales Representatives at the Wisconsin
Dells facility, plaintiff Toshia Parker avers that her primary job duty was to sell timeshare
properties and promotional packages. In that capacity, she met with customers in a sales
office on Wyndham premises after they returned from sales tours.
Parker further avers that her managers (Mike Wilder and Brian Washington)
instructed her that she could not be clocked into Wyndham’s time clock for more than forty
hours per week. Pursuant to those instructions, she regularly worked off the clock in the
presence of her managers, without overtime pay and, in some cases, without minimum
wage. Finally, she believes other Discovery Sales Representatives were subject to the same
policy, because they were also supervised by Wilder and Washington.
Defendants deny ever having any such policies. They state that Wyndham’s actual
policy unequivocally requires all employees, including sales representatives, to report their
hours accurately, and that Wyndham pays for all hours worked. Accordingly, Wyndham
argues that any deviation from that policy is based on individual circumstances, such as
employee or supervisor misconduct, rather than on a uniform policy, and that this case is
not appropriate for collective treatment.
I. Legal Standard for Conditional Certification
A. Two-Step Framework
Section 216(b) of the FLSA authorizes plaintiffs to bring a “collective action” against
an employer to recover unpaid compensation for themselves and on behalf of “other
employees similarly situated.” 29 U.S.C. § 216(b). Unlike a typical class action lawsuit,
where a putative class member not wishing to participate must “opt out” under Federal Rule
of Civil Procedure 23, a collective action under the FLSA requires putative class members to
“opt in” by filing a written consent to join the action. Woods v. N.Y. Life Ins. Co., 686 F.2d
578, 579-80 (7th Cir. 1982). In light of this requirement, most courts, including this one,
apply a two-step approach to certifying collective actions. Austin v. CUNA Mut. Ins. Soc’y,
232 F.R.D. 601, 605 (W.D. Wis. 2006).
The first step is conditional certification. Although conditional certification is not a
“mere formality,” Berndt v. Cleary Bldg. Corp., No. 11-cv-791-wmc, 2013 WL 3287599, at *7
(W.D. Wis. Jan. 25, 2013), a plaintiff need only make “a modest factual showing sufficient
to demonstrate that they and potential plaintiffs together were victims of a common policy
or plan that violated the law.” Austin, 232 F.R.D. at 605 (quoting Young v. Cooper Cameron
Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005)). “This standard is ‘fairly lenient’; it does not
involve adjudicating the merits of the claims, nor does it entail the kind of rigorous analysis
typical of class certification under Fed. R. Civ. P. 23.” Fosbinder-Bittorf v. SSM Health Care of
Wis., Inc., No. 11-cv-592-wmc, 2013 WL 3287634 (W.D. Wis. Mar. 21, 2013), at *4
(internal citations omitted).
In determining whether plaintiffs have met their burden,
“courts rely on the complaint and any affidavits that have been submitted.” Austin, 232
F.R.D. at 606.
Plaintiffs’ materials are the proper focus at this preliminary stage, not
defendants’. Id. For the purposes of conditional certification, therefore, the court resolves
any factual disputes in plaintiffs’ favor. Berndt, 2013 WL 3287599, at *7. If plaintiffs
satisfy this initial burden, the court conditionally certifies a collective action, authorizing
both notice to potential class members and discovery by the parties discovery.
Bluegreen Corp., 256 F.R.D. 626, 629 (W.D. Wis. 2009).
The second step of the process occurs at the close of discovery, upon a motion for
decertification from the defendant. Id. At that point, “the court determines whether the
plaintiffs are in fact similarly situated to those who have opted in.” Id. (emphasis added). If
it becomes clear that the case is not suitable for collective treatment, the court then
decertifies the collective action. See, e.g., Espenscheid v. DirectSat USA, LLC, No. 09-cv-625bbc, 2011 WL 2009967, at *7 (W.D. Wis. May 23, 2011).
B. “Similarly Situated”
To show that the named plaintiff and the putative plaintiffs are similarly situated,
the court requires the plaintiff to show that all are “victims of a common policy or plan that
[is asserted to have] violated the law.” Freeman v. Total Sec. Mgmt.-Wis., LLC, No. 12-cv461-wmc, 2013 WL 4049542, at *5 (Aug. 9, 2013 W.D. Wis.) (quoting Kelly, 256 F.R.D.
at 629-30) (alteration in original). Essentially, this requires a “factual nexus that connects
[the named plaintiff] to other potential plaintiffs as victims of an unlawful practice.”
Sjoblom v. Charter Commc’ns, LLC, 571 F. Supp. 2d 961, 971 (W.D. Wis. 2008). The central
question is whether potential plaintiffs “are sufficiently similar to believe a collective action
will facilitate efficient resolution of a legal dispute involving claims which share common
questions and common answers.” Berndt, 2013 WL 3287599, at *7.
A. Definition of Classes
Plaintiffs ask the court to conditionally certify two separate classes under the FLSA:
(1) All persons who have been or are currently employed by
Defendant as In-House Sales Representatives in the state of
Wisconsin at any time during the past three years; and
(2) All persons who have been or are currently employed by
Defendant as Discovery Sales Representatives in the state of
Wisconsin at any time during the past three years.
Accordingly, the court must consider whether named plaintiffs Bitner and Parker have met
their respective burdens to show that they were victims of a common policy that, if true,
violates the FLSA.
The FLSA requires employees to be paid at least minimum wage for all hours that
they work. 29 U.S.C. § 206(a). It also requires that employees be compensated at overtime
rates, defined as not less than one and one-half times their regular rate of pay, for any time
worked over forty hours in a given workweek. Id. at § 207(a). The “mere promulgation of a
rule” against uncompensated work is not sufficient to avoid liability. 29 C.F.R. § 785.13.
Rather, management must “make every effort” to enforce that rule. Id. When an employer
knows or has reason to believe that employees are continuing to work, even when
technically off the clock, that time is considered work time. Id. at § 785.11. In essence,
“[w]ork not requested but suffered or permitted is work time” for which the employer must
compensate its employees. Id.
As a preliminary matter, much of Wyndham’s opposition is based on differences
between the different classes of sales representatives. (See Def.’s Br. Opp’n (dkt. #62) 2532 (discussing differences between In-House and Discovery Sales Representatives).) This is
irrelevant, however, since plaintiffs have requested certification of two different classes. (See
2d Am. Compl. (dkt. #46) ¶¶ 27-28.) Thus, much of defendant’s argument is extraneous to
the task at hand, and the court need not delve into the minutiae of any differences between
the two proposed classes.
Additionally, Wyndham argues that plaintiffs have failed to identify with specificity
the policies they allege are unlawful. The court disagrees. Plaintiffs allege that Wyndham
required its In-House and Discovery Sales Representatives to under-report hours and to
work more than forty hours per week without overtime and minimum wage compensation.
This is sufficiently specific to allow the court to determine whether the similarities they
allege go to the merits of the case and would facilitate collective treatment.
Wyndham next argues that individualized proof and individual defenses predominate
over any common questions in this action, such that a collective action would be
(See Def.’s Br. Opp’n 34-36.)
While this may or may not prove true,
predominance is not an appropriate inquiry at the conditional certification stage.
Fosbinder-Bittorf, 2013 WL 3287634, at *4 (conditional certification does not involve the
“kind of rigorous analysis typical of class certification under Fed. R. Civ. P. 23”). Perhaps
defendant intended to argue a lack of commonality, rather than predominance,3 but
determining whether plaintiffs actually are similarly situated would require making factual
findings and is, therefore, a question best left to the decertification stage. See Viveros v. VPP
Grp., LLC, No. 12-cv-129-bbc, 2013 WL 3733388 (W.D. Wis. July 15, 2013).
matters for the present is whether plaintiffs have presented enough facts to make it
reasonably likely that, “when the representative plaintiff and the defendant debate liability as
between themselves, they are effectively deciding that question for each and every class
member.” Freeman, 2013 WL 4049542, at *5.
The “similarly situated” requirement of the FLSA resembles the commonality and typicality
requirements of Rule 23. See Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 771-72 (7th Cir.
Defendant also contends that conflicts exist between managers and sales
representatives, rendering this case inappropriate for class treatment, but that argument also
goes nowhere. First, it improperly imports Rule 23’s “adequate representation” requirement
to the conditional certification analysis; defendant has cited no authority for employing
such an analysis. Second, neither named plaintiff worked as a manager. Third, the class
definition does not by its terms include “managers,” but rather employees who have worked
as In-House or Discovery Sales Representatives.
All of those current and former sales
representatives share a common interest in compensation for off-the-clock work allegedly
performed in those roles pursuant to Wyndham policy, regardless of whether they have
since been promoted to a management position.
B. Factual Showing
Having addressed defendant’s general arguments against conditional certification, the
court now turns to plaintiffs’ evidence to determine whether they have made the requisite
“modest factual showing” that they were victims of a common unlawful policy.
In-House Sales Representatives
To show that In-House Sales Representatives are subject to a common Wyndham
policy requiring them to work off the clock without overtime, plaintiffs have submitted the
affidavit from Bitner, as well as from another In-House Sales Representative, Abraham
Both aver that they worked on the clock in the morning but that managers
instructed them to clock out for back-end sales meetings and customer events. Thus, they
aver that they regularly worked more than 40 hours per week but were not clocked in for
some of that time.
Their time records are generally consistent with these assertions,
reflecting that usually, Bitner and Haupt clocked out in the late morning or early afternoon.
(See David Zoeller Decl. Exs. 2, 3 (dkt. #38-2, -3).) In addition, plaintiffs have submitted
an affidavit from Thomas Delmore, who worked as an In-House Sales Representative from
July 2010 until August 2011, and who managed a team of In-House Sales Representatives
until he was terminated in May 2012.
Delmore avers that as an In-House Sales
Representative, he was instructed by manager Kyle Mays to work off the clock to avoid
clocking more than forty hours per week, and that later, as a manager of other In-House
Sales Representatives, he instructed his team not to clock 40 hours or more, again at the
instruction of Mays and other Wyndham superiors. That Bitner, Haupt and Delmore all
aver that their instructions came from managers allows for a reasonable inference that
Wyndham maintained an unofficial policy requiring In-House Sales Representatives to
clock out even when still working.
In opposition, Wyndham submits declarations from multiple In-House Sales
Representatives who aver: (1) that they were always on the clock whenever speaking with
timeshare owners or giving sales pitches, and (2) that they were never told they could not
record time spent on work-related activities. (See Adam Karls Decl. (dkt. #52) ¶¶ 9-10;
Chris Brodnicki Decl. (dkt. #53) ¶¶ 10, 13-14); Ernest Lynch Decl. (dkt. #55) ¶¶ 10-11;
Greg Metzler Decl. (dkt. #56) ¶¶ 8-9; Larry Lynch Decl. (dkt. #57) ¶¶ 7-13; Margaret
Zautke Decl. (dkt. #58) ¶¶ 14-17; Max Keeling Decl. (dkt. #59) ¶¶ 14-15.) While these
declarations suggest plaintiffs may have an uphill battle ahead of them in proving the merits
of their claim, as previously mentioned, the court resolves all factual disputes in their favor
at the conditional certification stage. Berndt, 2013 WL 3287599, at *7. For the present,
therefore, the court must credit plaintiffs’ assertion that they were instructed by managers
and, in Delmore’s case, that as a manager he was required to instruct his team members, to
clock out before back-end meetings and customer events.4
Wyndham also argues that its actual policies unequivocally require employees to
account accurately for all time worked, pointing to (1) its employee handbooks and (2) the
declaration of Dawn Franson, who administers training to sales representatives and avers
that she informs all representatives they must record all time worked. (See Nora Kaitfors
Decl. Exs. A, B (dkt. #63-1, -2); Dawn Franson Decl. (dkt. #50) ¶ 7.)
discussed, however, the existence of a rule against uncompensated work time is not enough
to absolve an employer from liability. See 29 C.F.R. § 785.13. Given that Bitner, Haupt
and Delmore have all averred that Wyndham managers with supervisory authority
instructed them not to record all of their time, it is reasonable to infer that the promulgated
policies in the employee handbook and espoused in training were Wyndham policy in name
only. In any event, as also noted, conditional certification does not involve adjudication of
the merits of plaintiffs’ claims. Fosbinder-Bittorf, 2013 WL 3287634, at *4. After discovery,
Wyndham may certainly try to demonstrate that the “unofficial policy” of which plaintiffs
complain did not exist, and that pressure to clock out and continue to work came from
“rogue supervisors,” but that assumption is not appropriate at the conditional certification
The same is true with respect to Wyndham’s argument that Bitner’s testimony as to his hours and
days worked is belied by records of the time recorded. (See Def.’s Br. Opp’n (dkt. #62) 16-17.)
Either Bitner or Wyndham could be correct as to the actual hours Bitner spent working, but at this
stage, the court resolves that factual dispute in Bitner’s favor.
Defendant cites Saleen v. Waste Mgmt., Inc., 649 F. Supp. 2d 937, 941 (D. Minn. 2009), for the
proposition that the “mere fact that a small fraction of employees allege that they did not receive the
compensation to which they were entitled provides almost no evidence that the reason that these
employees were underpaid was because of an unlawful companywide policy,” but that case is
distinguishable. In Saleen, plaintiffs sought to certify a nationwide class of tens of thousands of
Based on the foregoing, plaintiffs have made the “modest factual showing” that the
Plaintiffs have produced sufficient evidence to suggest that Wyndham
maintained a common policy with respect to its Wisconsin In-House Sales Representatives
requiring that they clock out after their morning tours and avoid working more than 40
hours per week. If true, this would “effectively strip unique, individual facts out of the
liability analysis,” Freeman, 2013 WL 4049542, at *5, making this case appropriate for
collective treatment. Certainly, defendants have also presented evidence suggesting that the
alleged policy did not actually apply to all In-House Representatives, but the resolution of
that factual dispute is appropriately left to a motion for decertification, particularly because
plaintiffs have not yet had a chance to depose any of defendant’s affiants. Accordingly, the
court will grant plaintiffs’ motion to certify a class of In-House Sales Representatives
pursuant to 29 U.S.C. § 216(b).
Discovery Sales Representatives
Plaintiffs’ evidence of a common unlawful policy with respect to Discovery Sales
Representatives is weaker than its evidence with respect to In-House Sales Representatives.
In a single, supporting declaration, Toshia Parker avers that she routinely worked more than
forty hours per week but received neither overtime compensation nor, at times, minimum
wage. Consistent with her allegations, her earnings statements do not show her working
more than 40 hours, even though she avers that she routinely worked in excess of 40 hours
per week. (Compare Zoeller Decl. Ex. 4, with Parker Decl. (dkt. #40) ¶ 6.).) She further
avers that her managers, Mike Wilder and Brian Washington, instructed her that she could
employees across 820 facilities in 47 states. In contrast, here, plaintiffs seek to certify a class of
employees at one facility, which makes it far more likely that they were victims of a common policy.
not be clocked in for more than forty hours per week, and that as a result, she regularly
worked off the clock in their presence. Finally, she alleges that she believes this requirement
applied equally to all Discovery Sales Representatives, because those sales representatives
were also supervised by Wilder and Washington.
Defendant argues that Parker’s deposition testimony undermines plaintiffs’ theory
that Wyndham maintained an unlawful policy with respect to Discovery Sales
Representatives. First, defendant points out that Parker frequently recorded hours of well
below forty per week, and that when asked why, Parker testified:
Because you have to pay it back.
I see. So you wouldn’t record the time because you
wouldn’t want to pay it back?
Yes. You have to pay all of that money back. So as long
as we kept it under 40, that was the only concern.
You wouldn’t want to have to pay more money back,
because the more money you pay back, the less commission
(Parker Dep. (dkt. #28) 221:3-12.) What matters for conditional certification purposes,
however, is that: (1) Parker regularly worked more than forty hours; (2) she did so at her
managers’ direction and with their knowledge; (3) she was not paid overtime for those
hours; and (4) she believes that all Discovery Sales Representatives were subject to those
same directions. Her reasons for keeping her own recorded total hours on the low end are
not relevant to that inquiry.
Second, defendant argues that “Parker acknowledged no manager ever told her she
needed to keep her hours as low as possible or that she had to punch in and out of
Wyntime at certain times” (Def.’s Br. Opp’n 12), citing the following testimony:
Did someone tell you that you had to punch out early?
Someone told me not to go over forty hours, yes.
Who was that?
Whoever my manager was at the time.
(Parker Dep. 194:22-195:1.) Parker further testified:
All the managers who supervised you, [. . .] is it your
testimony that all the names you listed in your deposition after
2009 told you that you must not have time recorded for more
than forty hours a week?
They told you this at multiple and various times during
And you believe they told other people that?
(Parker Dep. 195:6-18.)
In context, then, Parker’s testimony supports plaintiffs’ theory that Wyndham
maintained a policy of requiring its Discovery Sales Representatives to keep their recorded
weekly hours below forty. That Parker was never told to keep her hours “as low as possible”
or to punch in and out “at certain times” has little bearing on plaintiffs’ theory of liability,
particularly in light of her testimony that she was repeatedly told she could not record more
than forty hours of time per week.
Representatives, who aver that they have recorded, and been paid for, all hours worked,
including overtime hours in some instances. (See Elena Lahti Decl. (dkt. #54) ¶ 10 (has
been paid for all overtime); Stuart Abel Decl. (dkt. #60) ¶ 9; Zautke Decl. ¶ 10.) They also
aver that they were never told they could not record as working time the time they spend
waiting for their next tour. (See Lahti Decl. ¶ 8; Abel Decl. ¶ 10; Zautke Decl. ¶ 11.)
Given this contradictory evidence, defendant again appears to have a strong
argument on the merits that Discovery Sales Representatives were not similarly situated for
purposes of FLSA liability.
Nevertheless, because of plaintiffs’ relatively low burden at
conditional certification, and because the court resolves factual disputes in plaintiffs’ favor
at this stage, the court finds that plaintiffs have shown a reasonable basis to believe that
Wyndham required other Discovery Sales Representatives to clock out so as to keep their
weekly hours recorded below forty. The court’s reasoning stems from the alleged source of
those instructions: Parker has averred that she was instructed not to clock in for more than
forty hours per week by her managers, Wilder and Washington, who also supervised the
other Discovery Sales Representatives in Wisconsin Dells. (See Parker Decl. ¶¶ 7-8.) This is
enough to suggest that Wyndham maintained an unlawful policy generally applicable to its
Discovery Sales Representatives and to justify notice to the proposed class.
Plaintiffs next ask the court to authorize notice to the two classes, requesting a 60day deadline for potential opt-in plaintiffs to return the consent form. They also ask that
they be permitted to mail the notice and that Wyndham be required to post the notice in
conspicuous places available to employees, such as bulletin boards, consistent with this
court’s decisions in cases like Freeman, 2013 WL 4049542, at *11, and Fosbinder-Bittorf,
2013 WL 3287634, at *7. Defendants do not object to these proposals, and the court
concludes they will be generally sufficient.
Defendant does identify several purported problems with plaintiffs’ proposed class
notice and consent form, however. For the most part, plaintiffs do not object to defendant’s
proposed changes, which include: (1) adding language that details the potential risks of
participating in the lawsuit, modeled on that required by this court’s decision in Freeman;
(2) removing the bolding from portions of the notice addressing the benefits of participation
in the lawsuit; (3) revising the consent form to refer to Wyndham Vacation Resorts, Inc.,
rather than to other Wyndham entities not named as defendants; and (4) removing
references to “front-line sales representatives” from paragraph 2 of the consent form, since
plaintiffs do not bring collective claims on behalf of front line sales representatives.
These changes appear both warranted and reasonable. Therefore, plaintiffs should
add the following language at the end of the section entitled “Effect of Joining this Lawsuit”:
The risks in joining this lawsuit may include: (1) being required
to participate in the litigation by testifying at deposition and/or
at trial; and (2) having a portion of the defendant’s court costs
and expenses assessed against you if you do not prevail on your
See Freeman, 2013 WL 4049542, at *11. Plaintiffs must also remove the bolding from the
text “you are not required to pay any money to participate” in the section “Your Right to
Participate in this Suit.”6 Finally, plaintiffs should revise the consent form to correctly
name the defendant and remove all references to Front Line Sales Representatives.
Defendant also asks that the added language regarding the risks of participating in
the lawsuit be bolded and underlined. Because the court has directed that such emphasis be
removed from the text delineating the benefits of the suit, there is no reason to overemphasize the possible costs, since that, too, would “paint an inaccurate picture of the
risk/reward balance for potential class members.” Id.
Finally, to facilitate notice, Plaintiffs ask, consistent with this court’s decision in
Freeman, that the court order defendants to produce, within fourteen days:
a list, in electronic importable format (e.g., Microsoft Excel
(.xls)), of all Sales Representatives employed by Wyndham
between June 25, 2013 and the date of the Court’s order,
including their name, mailing address, dates of employment as a
Sales Representative, and employee identification number.
(Pls.’ Br. Supp. Conditional Certification (dkt. #37) 20.) Absent some other agreement by
the parties or a specific objection by defendants to the terms or timing of this disclosure
within the next seven days, the court will grant plaintiffs’ request.7 The court encourages
counsel to send out notice sooner rather than later to encourage additional opt-in plaintiffs
to join the suit; to facilitate the quick dissemination of the notice, the court will expedite its
review of any objection by defendant.
The court agrees with plaintiffs that the language regarding the opt-in deadline may remain bolded,
since that section informs the recipient of the opt-in deadline without extolling the potential benefits
of joining the suit.
By way of example only, the parties may agree to modify the above request to include only
information about Discovery and In-House Sales Representatives, since plaintiffs have not sought
collective treatment for Front Line Sales Representatives. In the event that defendant does have
some objection to plaintiffs’ request that the parties cannot resolve, defendant may defer producing
the specific information to which the objection applies until the court has resolved the dispute.
IV. Equitable Tolling
Plaintiffs have also filed a motion for equitable tolling of the statute of limitations on
the collective claims. A court may equitably toll the statute of limitations where (1) the
party has diligently pursued his or her rights and (2) some extraordinary circumstance stood
in the way and prevented timely filing. McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013).
Courts have disagreed as to whether the court’s delay in ruling on a motion for conditional
certification, without more, constitutes extraordinary circumstances. Compare, e.g., Bergman
v. Kindred Healthcare, Inc., 949 F. Supp. 2d 852, 860-61 (N.D. Ill. 2013) (tolling statute of
limitations); McGlone v. Contract Callers, Inc., 867 F. Supp. 2d 438, 445 (S.D.N.Y. 2012)
(same); Putnam v. Galaxy 1 Mktg., Inc., 276 F.R.D. 264, 276 (S.D. Iowa 2011) (same), with
Greenstein v. Meredith Corp., No. 11-2399-RDR, 2013 WL 4028732 (D. Kan. Aug. 7, 2013)
(denying motion for equitable tolling); Powers v. Centennial Commc’ns Corp., No. 1:08-cv-208PPS, 2010 WL 746776, at *2-4 (N.D. Ind. Feb. 26, 2010) (same); Espenscheid v. DirectSat
USA, LLC, No. 09-cv-625-bbc 2011 U.S. Dist. LEXIS 157339 (W.D. Wis. June 7, 2010)
(declining to equitably toll statute of limitations pending appeal of decertification order).
The Seventh Circuit has not definitively ruled on this issue, although it has held in other
contexts that equitable tolling is to be “used sparingly, reserved for those situations in which
extraordinary circumstances prevent a party from filing on time.” Wilson v. Battles, 302 F.3d
745, 749 (7th Cir. 2002). “In most cases in which equitable tolling is invoked, the statute
of limitations has run before the plaintiff obtained information essential to deciding whether
he had a claim.”8
Cada v. Baxter Healthcare Corp., 920 F.2d 446, 453 (7th Cir. 1990)
(emphasis in original).
In light of the high standard for equitable tolling, the court declines to toll the
statute of limitations at this time. While a delay of seven months is not ideal, it does not
appear to constitute an extraordinary circumstance, let alone one that prevented potential
opt-in plaintiffs from timely joining this suit. Indeed, some plaintiffs have opted in since
this lawsuit began, even without the benefit of the court-authorized notice that plaintiffs
(See, e.g., dkt. #67-1, 71-1.)
Plaintiffs have offered no reason why delay on the
motion for conditional certification rendered them unable to obtain information necessary
to determining whether they had a viable FLSA claim. Cf. Powers, 2010 WL 746776, at *3
(“[N]othing prevented potential opt-in plaintiffs from filing a claim while the motion was
under consideration. Notably, Powers fails to point to any potential opt-in plaintiffs who
would have timely opted-in had the Court resolved the motion to certify sooner.”).
Finally, the present denial is without prejudice to individual opt-in plaintiffs moving
to equitably toll the statute of limitations on their claims. It is possible that individual
plaintiffs may be able to demonstrate, under their particular circumstances, that they were
actually prevented from recognizing they might have a FLSA claim by the lack of court-
Defendant also points out an additional wrinkle in plaintiffs’ request: the order plaintiffs seek
would apply not to those plaintiffs who have already opted in but to those who have not. The
Federal Circuit has previously vacated a district court’s order for equitably tolling because it “affected
no right of any party to the suit.” See United States v. Cook, 795 F.2d 987, 994 (Fed. Cir. 1986). The
employees who might potentially have benefitted from tolling had not yet filed claims and were,
therefore, not yet before the court. Id. The Federal Circuit concluded on those grounds that the
order was premature and noted that, “[w]hen and if the time comes, the district court will
presumably apply the doctrine of equitable tolling consistently with Congress’ intent in enacting the
particular statutory scheme set forth in FLSA.” Id. Because the court concludes that equitable
tolling is not warranted for other reasons, it need not determine whether to adopt the rationale of
Cook in this case.
facilitated notice coupled with some other circumstances. Should this be the case, those
plaintiffs may seek equitable tolling of their claims, keeping in mind that they will have to
demonstrate both diligence and extraordinary circumstances that go beyond the mere delays
IT IS ORDERED that:
1) Plaintiffs’ motion for conditional certification and court-facilitated class notice
(dkt. #36) is GRANTED, subject to the modifications set forth above.
2) Absent objection within seven days, defendants shall produce to plaintiffs, within
fourteen days of this order, a list, in electronic importable format (e.g., Microsoft
Excel (.xls)), of all Sales Representatives employed by Wyndham between June
25, 2013 and July 25, 2014, including their name, mailing address, dates of
employment as a Sales Representative, and employee identification number.
3) Defendant’s motion to file a reply (dkt. #80) is DENIED as moot.
4) Plaintiffs’ motion for equitable tolling (dkt. #82) is DENIED.
5) A telephonic scheduling conference will be held on July 30, 2014, at 2:00 p.m.
with Magistrate Judge Crocker to reestablish deadlines. Plaintiffs shall initiate
the call to the court.
Entered this 25th day of July, 2014.
BY THE COURT:
WILLIAM M. CONLEY
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