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Paxton v. Bluegreen Vacations Unlimited

United States District Court, E.D. Tennessee, Knoxville

August 25, 2017

WHITNEY PAXTON, et al., Plaintiffs,
v.
BLUEGREEN VACATIONS UNLIMITED, et al., Defendants.

          Guyton, Magistrate Judge.

          ORDER

          HARRY S. MATTICE, JR. UNITED STATES DISTRICT JUDGE.

         On July 27, 2017, United States Magistrate Judge H. Bruce Guyton filed his Report and Recommendation, (Doc. 41), pursuant to 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72(b), and the Court's Referral Order (Doc. 29). Therein, Magistrate Judge Guyton recommends that Plaintiff's Motion to Conditionally Certify Collective Action and Facilitate Notice to Potential Class Members, (Doc. 27), be granted in part and denied in part. (Doc. 41 at 14).

         Defendants filed timely objections on August 10, 2017. (Doc. 42). The Court has conducted a review of the Report and Recommendation, as well as the entire record related to this matter, and it agrees with Magistrate Judge Guyton's well-reasons conclusions. Accordingly, the Court will ACCEPT and ADOPT Magistrate Judge Guyton's Report and Recommendation, and Plaintiff's Motion, (Doc. 27), will be GRANTED in part and DENIED in part as outlined herein.

         I. BACKGROUND

         The Parties have not objected to the Magistrate Judge's recitation of the facts and the Parties' respective positions, and the Court concludes that it is accurate. The pertinent facts as summarized by Magistrate Judge Guyton are as follows:

The Complaint [Doc. 1] in this case was filed on August 24, 2016. The Complaint alleges violations of the Fair Labor Standards Act of 1938 (“FLSA”). In addition, Plaintiff Whitney Paxton states that she was unlawfully terminated after complaining to the Defendants about their failure to pay wages in violation of § 215(a) of the FLSA. Id. at ¶ 1. The Complaint alleges that the Plaintiffs were either formerly employed, or remain employed, by the Defendants as nonexempt employees. Id. at ¶ 2. The Complaint states that the Plaintiffs worked as In-House Sales Representatives and/or Front Line Sales, or similar positions with duties and responsibilities, including selling and promoting time-share interest. Id. at ¶ 3. The Complaint contends that during the three-year period prior to filing the Complaint, the Defendants committed violations of the FLSA by requiring and/or suffering and/or permitting its employees to work in excess of forty (40) hours per week without receiving earned compensation, including overtime pay as required by law. Id. at ¶ 4. The Complaint continues that the Defendants did not pay the Plaintiffs for all hours worked. Id. Further, the Complaint states that the Defendants contracted with the Plaintiffs, as a term and condition of their employment, to pay for all hours worked based on the legally appropriate hourly rate of pay, including overtime. Id. In addition, the Complaint alleges that during the three-year period prior to the filing of the Complaint, the Defendants required the Plaintiffs to adjust their hours so that the Plaintiffs would not be paid overtime. Id. at ¶ 5. The Complaint states that the Defendants also required the Plaintiffs to sign documentation reducing their hours of work and that the Defendants required the Plaintiffs to work off-the-clock. Id. In summary, the Complaint alleges violations of the FLSA, breach of contract, and retaliatory discharge of Plaintiff Wendy Paxton. Id. at ¶¶ 15-26 . . .
The Plaintiffs move [Doc. 27] for an order conditionally certifying this case as a collective action. In addition, the Plaintiffs request an implementing procedure, whereby prospective opt-in plaintiffs will be notified of Plaintiffs' FLSA claims and be given an opportunity to join the collective action. Specifically, the Plaintiffs state that the collective action will consist of Sales Representatives employed by Defendant Bluegreen Vacations Unlimited, Inc., (“Bluegreen”) at its Pigeon Forge, Gatlinburg, and Orlando, Florida locations within the last three years. The Plaintiffs assert that there are common questions of law or fact to all the Sales Representatives. The Plaintiffs argue that the Defendants employ similarly situated Sales Representatives who were or are paid under the same pay practices that were applicable to all Sales Representatives within the defined class. The Plaintiffs contend that district courts often conditionally certify similar cases. Further, the Plaintiffs claim that courts do not consider factual disputes, the merits of the claim, discovery, or individualized defenses. The Plaintiffs assert that the proposed class notice is accurate and should be mailed, emailed and posted at Defendant Bluegreen's locations. Further, the Plaintiffs assert that notice should be sent to class members within a three-year statute of limitations and that the Court should order the Defendants to provide contact information for the class members.
The Defendants respond [Doc. 31] that the Plaintiffs have not identified a single policy that even arguably violates the FLSA. Further, the Defendants argue that the Plaintiffs' evidence of being similarly situated is insufficient. The Defendants explain that the Plaintiffs fail to identify a common theory of liability, they fail to identify a common decision maker, and they provide no evidence regarding current Bluegreen employees. Further, the Defendants assert that the Plaintiffs and the declarants are not similarly situated and that their claims are not suited for collective treatment. With respect to the proposed notice, the Defendants assert that the notice and consent are deficient and misleading. Finally, the Defendants assert that only one form of notice is appropriate and that the Plaintiffs are not entitled to putative collective members' social security numbers.
The Plaintiffs' Reply [Doc. 32] argues that they were all required to under report their actual hours worked and that each Plaintiff avers they worked far in excess of forty hours each workweek that they were employed. Further, they submit that they have provided sufficient evidence of being similarly situated. Finally, the Plaintiffs suggest that the parties confer and resolve all the issues related to the proposed notice.
On the Court's invitation, the parties submitted supplemental briefs after the hearing on this matter. In the Plaintiffs' Supplemental Brief [Doc. 37], they state that the Court should certify a class, including Front-Line Sales Representatives. The Plaintiffs aver that Front-Line Sales Representatives are similarly situated and that the Defendants have only argued minor variations between In-House Sales Representatives and Front-Line Sales Representatives. Further, the Plaintiffs assert that the Florida Sales Representatives [hereinafter “Florida Employees”] should be included in the collective action because they are similarly situated. The Plaintiffs also assert that the Court has the option to conditionally certify a class that includes subclasses.
The Defendants filed a Supplemental Response [Doc. 38], asserting that the Florida employees should not be included in any collective action. The Defendants argue that convenience is the only basis articulated by the Plaintiffs for the effort to expand this action. The Defendants assert that the Florida employees are not similarly situated to the employees in Tennessee. In addition, the Defendants contend that the Florida employees do not identify a violation of the FLSA and that inclusion of the Florida employees is procedurally inappropriate. Further, the Defendants argue that Front Line Sales Representatives should not be included in any collective action. The Defendants submit that neither named Plaintiff worked as a Front-Line Sales Representative during the statute of limitations period for this action. The Defendants also state that the Plaintiffs have not submitted any evidence related to Front-Line Sales Representatives in Tennessee. Finally, the Defendants assert that the Plaintiffs' reliance on the Wyndham cases is misplaced.

(Doc. 41 at 2-5) (footnotes omitted).

         II. ...


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