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Diggs v. Ovation Credit Services, Inc.

United States District Court, M.D. Florida, Jacksonville Division

September 25, 2019

VERNON DIGGS, individually and on behalf of those similarly situated, Plaintiff,
v.
OVATION CREDIT SERVICES, INC., TERRY D. CORDELL, and AMY MYERS, Defendants.

          ORDER

          MARCIA MORALES HOWARD, United Slates District Judge.

         THIS 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.

         I. Background

         Plaintiff 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.

         In 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.).[1]

         In his declaration, Diggs provides the following relevant information:

3. I worked for Defendants . . . from approximately August 2016 to November 2017.
4. Throughout my employment, I worked as an inside sales representative employee.
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.

         Diggs 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.[2]

         In 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.

         Alex 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. ΒΆ 15. Poulot, Stuart, and Scott all state that they have never: (1) worked off the clock; (2) been asked to work off the ...


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