Bitner v. Wyndham Vacation Resorts, Inc.
2014 U.S. Dist. LEXIS 101589
| W.D. Wis. | 2014Background
- Plaintiffs (Bitner and Parker), former Wyndham sales representatives at the Wisconsin Dells facility, allege Wyndham required In‑House and Discovery Sales Representatives to work off the clock and to under‑report hours so recorded weekly hours did not exceed 40, causing unpaid minimum wage and overtime violations under the FLSA.
- Wyndham classifies sales reps as non‑exempt, pays a recoverable hourly draw plus commissions, requires employees to track their own time and seek preapproval for overtime, and denies any policy directing under‑reporting.
- Plaintiffs submitted affidavits from Bitner, Parker, another rep (Haupt), and a former manager (Delmore) stating managers instructed reps to clock out before back‑end sales meetings and customer events and to avoid recording over 40 hours; time records tend to show clock‑outs in late morning/early afternoon.
- Wyndham submitted declarations and employee handbook excerpts asserting its written policy requires accurate timekeeping and payment for all hours; defendants argue any under‑reporting stemmed from isolated supervisor misconduct.
- Plaintiffs moved for conditional certification of two collective classes under 29 U.S.C. § 216(b): (1) Wisconsin In‑House Sales Representatives (past 3 years) and (2) Wisconsin Discovery Sales Representatives (past 3 years); they also sought court‑authorized notice and a personnel list for notice distribution.
- The court resolved factual disputes in plaintiffs’ favor at the preliminary stage, granted conditional certification of both classes, authorized notice with specified edits, ordered production of a personnel list absent objection, and denied a motion for equitable tolling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard for conditional certification | Plaintiffs: need only a modest factual showing that potential plaintiffs were victims of a common unlawful policy | Wyndham: plaintiffs must show more than allegations; individualized issues predominate | Court: adopts two‑step FLSA framework; plaintiffs need a modest factual showing and court resolves disputes in plaintiffs’ favor at this stage |
| In‑House reps similarly situated | Bitner/Haupt/Delmore affidavits show manager‑directed clock‑outs and consistent time records indicating off‑the‑clock work | Wyndham: declarations and handbook show accurate time reporting policy; any violations were isolated supervisor misconduct | Court: plaintiffs made the modest factual showing; conditionally certifies In‑House Sales Representatives class |
| Discovery reps similarly situated | Parker affidavit/testimony that managers told her not to be clocked over 40 and that she routinely worked >40 hours unpaid; other reps supervised by same managers | Wyndham: other affidavits and Parker’s deposition inconsistencies undermine a common policy; individualized proof predominates | Court: evidence weaker but sufficient at this stage; conditionally certifies Discovery Sales Representatives class |
| Notice, list production, and equitable tolling | Plaintiffs: request court‑facilitated notice, 60‑day opt‑in, and electronic personnel list; request equitable tolling for delay | Wyndham: proposed edits to notice, objects to tolling | Court: authorizes notice with specified edits, orders production of personnel list absent timely objection, denies equitable tolling (without prejudice to individual motions) |
Key Cases Cited
- Woods v. N.Y. Life Ins. Co., 686 F.2d 578 (7th Cir.) (FLSA collective action opt‑in framework)
- Austin v. CUNA Mut. Ins. Soc’y, 232 F.R.D. 601 (W.D. Wis. 2006) (two‑step collective certification approach; modest factual showing standard)
- Kelly v. Bluegreen Corp., 256 F.R.D. 626 (W.D. Wis. 2009) (conditional certification authorizes notice and discovery)
- Espenscheid v. DirectSat USA, LLC, 705 F.3d 770 (7th Cir.) (comparison of FLSA similarly situated requirement to Rule 23 commonality/typicality)
- McQuiggin v. Perkins, 133 S. Ct. 1924 (U.S. 2013) (standards for equitable tolling)
- Wilson v. Battles, 302 F.3d 745 (7th Cir. 2002) (equitable tolling to be used sparingly)
- Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir. 1990) (equitable tolling typically where plaintiff lacked information necessary to file)