United States District Court, M.D. Florida, Jacksonville Division
VERNON DIGGS, individually and on behalf of those similarly situated, Plaintiff,
OVATION CREDIT SERVICES, INC., TERRY D. CORDELL, and AMY MYERS, Defendants.
MORALES HOWARD, United Slates District Judge.
CAUSE is before the Court on Plaintiff’s
expedited Motion to Conditionally Certify Collective
Action and Facilitate Notice to Potential Class Members and
Incorporated Memorandum of Law (Doc. 25; Motion). Defendants
have filed a response in opposition to the Motion.
See Defendants’ Response Opposing
Plaintiff’s Expedited Motion to Conditionally Certify
Collective Action and Facilitate Notice to Potential Class
Members and Memorandum of Law (Doc. 30; Response). Thus, the
Motion is ripe for review.
Vernon Diggs initiated this putative collective action on
March 16, 2018, by filing a two-count Complaint and Demand
for Jury Trial (Doc. 1; Complaint) against Defendants Ovation
Credit Services, Inc., Terry D. Cordell (Ovation’s
president), and Amy Myers (Ovation’s vice president).
In the Complaint, Diggs alleges that Defendants violated the
Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et
seq., by failing to compensate him and other similarly
situated employees for their overtime hours (Count One) and
by failing to pay him and other similarly situated employees
a minimum wage (Count Two). Specifically, Diggs alleges that
“[f]rom at least August 9, 2016, and continuing through
April 2017, Defendants failed to compensate [him] at rate of
one and one-half times [his] regular rate for all hours
worked in excess of forty (40) hours in a single work
week.” Id. at 4. Diggs further alleges that
“Defendants failed to pay [him] at least federal
minimum wage for all hours worked.” Id.
Between March 26, 2018 and July 3, 2018, five other Ovation
employees-Kimberly Gosse, Gabor Szabo, Daniel Wessels,
Michael Robinson, and Ernest Jackson-opted into the
litigation by filing notices of their consent to become party
plaintiffs (collectively, the opt-in Plaintiffs).
See Notices of Consent to Join (Doc. 7-1; Doc. 8-1;
Doc. 11-1; Doc. 15-1; Doc 21-1). The instant Motion for
conditional certification followed on September 26, 2018.
support of the Motion, Diggs has submitted his own
declaration and declarations from the five opt-in Plaintiffs.
See Motion, Exhibit E: Declaration of Vernon Diggs
(Doc. 25-5; Diggs Decl.); Exhibit F: Declaration of Kimberly
“Eve” Gosse (Doc. 25-6; Gosse Decl.); Exhibit G:
Declaration of Ernest Jackson (Doc. 25-7; Jackson Decl.);
Exhibit H: Declaration of Michael Robinson (Doc. 25-8;
Robinson Decl.); Exhibit I: Declaration of Gabor Szabo (Doc.
25-9; Szabo Decl.); Exhibit J: Declaration of Daniel Wessels
(Doc. 25-10; Wessels Decl.).
declaration, Diggs provides the following relevant
3. I worked for Defendants . . . from approximately August
2016 to November 2017.
4. Throughout my employment, I worked as an inside sales
5. All of Defendants’ inside sales representatives,
including me, were paid by the hour for each hour worked up
to 40 hours per workweek.
6. I was required to call potential leads and sell them
credit repair services.
7. As with all of Defendants’ inside sales
representatives, I was required to hit a quota of 21 sales
per pay period (or the next commission tier), or I would be
written up and potentially terminated.
8. During my employment with Ovation, the Defendants’
[sic] and its supervisors regularly encouraged all inside
sales representatives, including me, to work over forty (40)
hours in a workweek to reach our required sales quota or the
next commission tier.
9. When we worked more than 40 hours a week we were not paid
time and half our regular rate of pay for hours over 40. In
fact, no inside sales representative, including me, received
any compensation whatsoever for hours worked over 40.
10. Based on my personal observations during my employment
with Ovation, I am aware that all of Ovation’s inside
sales representatives performed similar duties to me, all
were paid in a similar manner – hourly up to 40 hours
per week, and none of them were paid for hours worked over 40
in a workweek.
11. Based on my discussions with other inside sales
representatives during my employment with Ovation, I
understand that other inside sales representatives, including
Earnest Jackson, Robert Jones, Alex Poulot, Anthony Edwards,
Shieka Burnett, Arthur McCorker, Darian Snodey, Michael
Robinson, and Tazwell Stuart would opt-in to this case and
pursue their claims for unpaid overtime to the extent they
received Court-approved notice of their right to do so. To
date, Kimberly “Eve” Gosse, Gabor Szabo and
Daniel Wessels have opted-in.
Decl. at 1-2. The declarations of the opt-in Plaintiffs are
substantively identical to Diggs’ declaration, except
that the opt-in Plaintiffs do not reference any other
potential employees that might wish to opt-in and their dates
of employment are different.
support of their Response, Defendants have submitted
declarations from Defendant Cordell and from three Ovation
employees: Alex Poulot, Tazwell Stuart, and Timothy Scott.
See Defendants Ovation Credit Services, Inc., Terry
D. Cordell, and Amy Myers’ Notice of Filing
Declarations in Support of Defendants’ Response
Opposing Plaintiff’s Expedited Motion to Conditionally
Certify Collective Action and Facilitate Notice to Potential
Class Members (Doc. 31), Attachment 1: Declaration of Terry
D. Cordell, Esq. (Doc. 31-1; Cordell Decl.); Attachment 2:
Declaration of Alex R. Poulot (Doc. 31-2; Poulot Decl.);
Attachment 3: Declaration of Timothy Scott (Doc. 31-3; Scott
Decl.); Attachment 4: Declaration of Tazwell Stuart (Doc.
31-4; Stuart Decl.). Cordell has been the President of
Ovation since 2004. See Cordell Decl. ¶ 2. In
his declaration, Cordell states that “Ovation sells
credit repair, credit monitoring, and credit education
services to the general public by telephone and the
internet.” Id. ¶ 3. Although Diggs and
the opt-in Plaintiffs called themselves inside sales
representatives, Cordell states that Ovation does not have
such a position. Id. at ¶ 6. Instead, Cordell
states, and Diggs does not dispute, that Ovation employed
Diggs and the opt-in Plaintiffs as credit analysts.
Id. Cordell further states that, in addition to
being employed as credit analysts, Diggs and Gosse also
served as sales managers during a portion of their employment
with Ovation. Id. ¶¶ 6, 7. Cordell avers
that credit analysts are paid an hourly wage plus commissions
based on the number of products and/or services the credit
analyst sells to individual consumers over a two-week payroll
period. Id. at ¶¶ 6, 13. According to
Cordell, “Ovation has never had a policy or practice of
requiring or knowingly allowing Credit Analysts to work off
the clock or to not record all hours worked. In fact,
Ovation’s policy is the opposite-you are not supposed
to work off the clock.” Id. ¶ 15.
Similarly, Cordell states that Ovation has a written overtime
policy. See id. ¶¶ 16-17.
Poulot has worked as a credit analyst for Ovation on and off
since June 2015, see Poulot Decl. ¶ 2, and
Tazwell Stuart has worked as a credit analyst since September
2016, see Stuart Decl. ¶ 2. Contrary to
Diggs’ assertion that Poulot and Stuart expressed their
interest in joining the action, Poulot and Stuart state in
their declarations that they have no desire to be involved in
the lawsuit, and they do not know any credit analysts who
want to be involved. See Poulot Dec. ¶ 13;
Stuart Decl. ¶ 14. Timothy Scott has worked at Ovation
since February 2017, first as a credit analyst and later as a
sales manager. See Scott Decl. ¶ 2. He also
states that he has no desire to join the lawsuit and knows of
no credit analyst at Ovation who would want to do so.
Id. ¶ 15. Poulot, Stuart, and Scott all state
that they have never: (1) worked off the clock; (2) been
asked to work off the ...