Botero v. Commonwealth Limousine Service, Inc. et al

Filing 79

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: " In accordance with the foregoing, 1) after consideration of the objections thereto, the Report and Recommendation of Magistrate Judge Dein (Docket No. 67 ) is ACCEPTED and ADOPTED, and 2) defendant's motion for summary judgment (Docket No. 37 ) is, with respect to plaintiffs' claim for commissions, ALLOWED, but is otherwise DENIED. So ordered." (Moore, Kellyann)

United States District Court
District of Massachusetts
________________________________
)
JAIME BOTERO, on behalf of
)
himself and all others similarly )
situated,
)
Plaintiff,
)
Civil Case No.
)
12-10428-NMG
v.
)
)
COMMONWEALTH LIMOUSINE SERVICE
)
INC. and DAWSON RUTTER, JR.,
)
Defendants.
)
________________________________ )
MEMORANDUM & ORDER
GORTON, J.
The instant matter involves a putative class action brought
by a chauffeur employed by defendant who claims that defendant
violated the Massachusetts Wage Act and the Fair Labor Standards
Act (“the FLSA”) by failing to compensate its chauffeurs
properly.

In April, 2013, Magistrate Judge Dein issued a Report

and Recommendation (“the R&R”) with respect to defendant’s motion
for summary judgment on all of plaintiff’s claims.

She

recommended that the motion be allowed with respect to
plaintiff’s claim for commissions but denied with respect to
plaintiff’s other claims.
After careful consideration of the R&R and the objections of
both parties thereto, this Court finds the reasoning of the
Report to be sound and will adopt its recommendation in its
entirety.

The Court issues this supplemental memorandum to
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address one of defendants’ specific objections and to explain how
adopting the R&R comports with this Court’s recent decision in
Raposo v. Garelick Farms, LLC, Civ. No. 11-11943.
First, defendants argue that the Magistrate Judge should
have adopted the reasoning of another district court which, when
considering similar claims against the same defendants and
identical meal policy, allowed defendants’ motion for summary
judgment. See Ellis v. Common Wealth Worldwide Chaueffuered
Transp. of NY, LLC, Civ. No. 10-CV-1741 DLI JO, 2012 WL 1004848
(E.D.N.Y. Mar. 23, 2012).

The record before this Court differs,

however, in at least one respect from the facts in the Ellis
case.

In that case, the district court assumed that there was a

genuine issue of fact as to whether the plaintiff worked through
his meal breaks but concluded that defendants could not be liable
because plaintiff presented “no evidence” that defendant was
aware of the problem. See id. at *9.

The evidence here reflects

that chauffeurs complained to defendants about the subject policy
and that evidence is sufficient to raise a genuine issue of
material fact as to defendants’ knowledge.
Moreover, as the Magistrate Judge reasoned, the challenged
policy applies only when chauffeurs have worked for uninterrupted
shifts of six hours or longer, which defendants themselves
determine after reviewing each chauffeur’s trip tickets and
accounting for time deemed to be uncompensable.

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Viewing the

facts in the light most favorable to the plaintiff, there remains
a genuine issue of material fact as to whether defendants
deducted time presumed to have been taken for lunch breaks from
time that qualified as “work time” under the FLSA.

See R&R,

Docket No. 67, at 13, 15-17.
Second, this Court recently issued an opinion in Raposo v.
Garelick Farms, LLC that denied plaintiffs’ motion for class
certification on a similar claim based upon their employer’s
alleged improper deduction of time spent on meal breaks because
it found that factual distinctions among class members resisted
“common answers” and failed to satisfy the commonality
requirement of Fed. R. Civ. P. 23. See Civ. No. 11-11943, Docket
No. 69, at 8-10.

Such a finding is, of course, consistent with

adoption of the R&R here because the fact that plaintiff has
raised a genuine issue of material fact with respect to some of
his claims has no bearing on whether those claims will qualify
for class treatment.

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ORDER
In accordance with the foregoing,
1)

after consideration of the objections thereto, the
Report and Recommendation of Magistrate Judge Dein
(Docket No. 67) is ACCEPTED and ADOPTED, and

2)

defendant’s motion for summary judgment (Docket No. 37)
is, with respect to plaintiffs’ claim for commissions,
ALLOWED, but is otherwise DENIED.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated July 25, 2013

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