Romulus et al v. CVS Pharmacy, Inc.

Filing 141

Judge Rya W. Zobel: Memorandum of Decision entered denying 115 Motion to Certify Class (Urso, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 13-10305-RWZ

DAVID ROMULUS, CASSANDRA BEALE, NICHOLAS HARRIS,
ASHLEY HILARIO, ROBERT BOURASSA, and ERICA MELLO,
on behalf of themselves and all other persons similarly situated
v.
CVS PHARMACY, INC.

MEMORANDUM OF DECISION
July 12, 2017

ZOBEL, S.D.J.
Plaintiffs Cassandra Beale, Nicholas Harris, Ashley Hilario, Robert Bourassa,
and Erica Mello, former Shift Supervisors at CVS Pharmacy, Inc. (“CVS”), allege that
they were required to remain in the store during their meal breaks when no other
managerial employees were present and that they were not paid for this time. Based
on these allegations, they claim CVS violated the Massachusetts Wage Act, Mass.
Gen. Laws, ch. 149, § 148, and the Massachusetts overtime statute, Mass. Gen. Laws,
ch.151, §§ 1A & 1B. In the instant motion, plaintiffs seek certification under Federal
Rule of Civil Procedure 23(b)(3) of the following two classes:
(1) All CVS Shift Supervisors who worked for an hourly wage in
Massachusetts between July 25, 2008 and May 14, 2013 and were
not paid for meal breaks during which CVS required them to remain
in the store, for recovery of wages for unpaid meal breaks during that
period (the “First Class”); and
(2) All CVS Shift Supervisors who worked for an hourly wage in

Massachusetts between May 15, 2013 and the date of final judgment
and who were not paid for meal breaks during which CVS required
them to remain in the store, for recovery of wages for unpaid meal
breaks during that period (the “Second Class,” or together with the
First Class, the “Classes”)
Docket # 115, at 1.
I.

Background
The procedural history of this case is detailed in the First Circuit’s decision,

Romulus v. CVS Pharmacy, Inc., 770 F.3d 67, 70–72 (1st Cir. 2014). As relevant here,
named plaintiffs Beale, Harris, Hilario, Bourassa, and Mello each worked as Shift
Supervisors for defendant CVS Pharmacy, Inc. (“CVS”), in Massachusetts. Beale,
Harris, Hilario, and Bourassa were employed by CVS at various times prior to 2013;
Mello was employed between approximately September 2013 and November 2014.
In their complaint, plaintiffs allege that CVS required Shift Supervisors and
Assistant Managers to remain in the store during their rest or meal breaks “when there
were no other managerial employees on duty and/or when there was only one other
employee on duty.” Docket # 75, at ¶ 2. They allege that during this time, they were
not only required to stay in the store but were also interrupted to handle transactions
when necessary. Nonetheless, plaintiffs allege, they were required to punch out during
these breaks and were not paid for their time.
Plaintiffs maintain that the combination of two CVS policies led to their unpaid
work during breaks: first, in that until at least May 2013,1 CVS’s “management coverage

1

Beginning on May 15, 2013, CVS im plem ented a “delegation tool” through which an
em ployee such as a Shift Supervisor could tem porarily delegate authority to another front store em ployee.
See Docket # 130, at 10; see also Docket # 116, at 12. Plaintiffs claim there are still “W age Act claim s
despite the change in policy.” Docket # 116, at 13.

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policy” prohibited Shift Supervisors from leaving store premises when no other
“managerial employees” — Shift Supervisors, Managers, and Assistant Managers —
were present; and second, in that under the “unpaid meal break” policy meal breaks
must be unpaid. See Docket # 16, at 7.
II.

Standard
To obtain class certification, plaintiffs must first meet Rule 23(a)’s prerequisites:

(1) that the class be so numerous such that “joinder of all members is impracticable”;
(2) that common questions of law or fact exist; (3) that the representative parties’ claims
or defenses are typical of those of the class; and (4) that “the representative parties will
fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). For class
certification under Rule 23(b)(3), the court must find (1) “that the questions of law or fact
common to class members predominate over any questions affecting only individual
members”; and (2) “that a class action is superior to other available methods for fairly
and efficiently adjudicating the controversy.” Id. 23(b)(3). Plaintiffs must make an initial
showing, by a preponderance of evidence, “that a proposed class satisfies the Rule 23
requirements.” In re Nexium Antitrust Litig., 777 F.3d 9, 27 (1st Cir. 2015). “Once
plaintiffs have made their initial showing, defendants have the burden of producing
sufficient evidence to rebut the plaintiff's showing.” Id.
III.

Discussion
“A district court must conduct a rigorous analysis of the prerequisites established

by Rule 23 before certifying a class.” Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32,
38 (1st Cir. 2003). “Such an analysis will frequently entail ‘overlap with the merits of the

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plaintiff's underlying claim.’ . . . That is so because the ‘class determination generally
involves considerations that are enmeshed in the factual and legal issues comprising
the plaintiff’s cause of action.’” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432
(2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011)).
A.

Ascertainability

The parties’ first point of contention is whether the proposed classes are
ascertainable. Although not found explicitly in Rule 23, ascertainability is an “implied
requirement” and “essentially require[s] a putative class to be ascertainable with
reference to objective criteria.” William B. Rubenstein, Newberg on Class Actions §§
3:1 (5th ed. 2017); see also Nexium, 777 F.3d at 19 (citing and quoting Rubenstein);
Matamoros v. Starbucks Corp., 699 F.3d 129, 139 (1st Cir. 2012) (“The presence of . . .
an objective criterion overcomes the claim that the class is unascertainable.”).
Here, plaintiffs’ class includes all Shift Supervisors who were not paid when they
were required to stay in the store during meal breaks. Such a determination could be
defined by an “objective criterion,” namely whether Shift Supervisors were in the store
during an unpaid break when no other managerial employee was present. Compare
Matamoros, 699 F.3d at 139 (finding class “ascertainable under the objective standard
of job titles and includes those who worked as baristas during the class period”), with
Crosby v. Soc. Sec. Admin. of U.S., 796 F.2d 576, 580 (1st Cir. 1986) (finding class not
ascertainable when “the determination of whether the right to a reasonably timely ALJ
hearing and decision has been violated can be made only on a case-by-case basis”).
However, whether “prior to judgment, it will be possible to establish a mechanism for
distinguishing the injured from the uninjured class members,” see Nexium 777 F.3d at
4

19, presents a more difficult question.
Because the class certification determination can be resolved based on
commonality and predominance, I do not decide the answer to the latter question. See
7A Charles Alan Wright et al., Federal Practice and Procedure § 1760 n.10 (3d ed.
2017) (“Ascertainability is not a separate, preliminary requirement to maintain a class
action, rather a court will adhere to a rigorous analysis of the rule requirements, which
includes that a class must be adequately defined and clearly ascertainable.”); cf.
Donovan v. Philip Morris USA, Inc., 268 F.R.D. 1, 9 (D. Mass. 2010) (explaining that
“the four traditional 23(a) factors embrace [the ascertainability] appraisal” and that
“most courts do not independently address ‘administrative feasibility’ or
‘ascertainability’”).
B.

Rule 23(a) Requirements

Under Rule 23(a), plaintiffs must establish numerosity, commonality, typicality,
and adequacy. See Fed. R. Civ. P. 23(a). There is no dispute regarding numerosity,
and CVS does not challenge typicality and adequacy for the First Class.
1.

Commonality

Rule 23(a)(2) requires plaintiffs show that “there are questions of law or fact
common to the class.” Fed. R. Civ. P. 23(a)(2). The Supreme Court has explained this
means plaintiffs must “demonstrate that the class members ‘have suffered the same
injury’” and that “[t]heir claims must depend upon a common contention.” Wal-Mart,
564 U.S. at 350 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)).
“That common contention . . . must be of such a nature that it is capable of classwide

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resolution — which means that determination of its truth or falsity will resolve an issue
that is central to the validity of each one of the claims in one stroke.” Id. “In other
words, the commonality requirement is met where the ‘questions that go to the heart of
the elements of the cause of action’ will ‘each be answered either “yes” or “no” for the
entire class’ and ‘the answers will not vary by individual class member.’” Raposo v.
Garelick Farms, LLC, 293 F.R.D. 52, 55 (D. Mass. 2013) (quoting Donovan v. Philip
Morris USA, Inc., No. 06-cv-12234-DJC, 2012 WL 957633, at *21 (D. Mass. Mar. 21,
2012)).
Here, plaintiffs maintain that commonality is established because of “a common
policy” that “required Shift Supervisors to remain on store premises for unpaid breaks
when no other managerial employee was present” for the First Class Period and
“required [Shift Supervisors] to remain in their stores during unpaid meal breaks unless
another manager or a fully trained non-managerial person was present” for the Second
Class Period. Docket # 116, at 17 & n.15. They point to the following evidence as
leading to such a policy:
1.

The “Region 2 Authorized Keyholder and Management
Coverage Policy” that states “[a] member of Front Store
Management must always be present in the store while the
store is occupied.”2 Docket # 117-16, at 2; Docket # 117-18,
at 2; see also Docket # 117-12, at 11(CVS interrogatory
response stating that “[i]n Massachusetts during the Class
Period, CVS advised store management that a Store
Manager, Assistant Manager, Store Manager Trainee, Shift
Supervisor, or Night Crew Supervisor should be present in
the store when the store was occupied”).

2

“Front Store Managem ent” includes the Store Manager, Assistant Store Manager, Store
Managem ent Trainee, Shift Supervisor A, Shift Supervisor B, and Night Crew Supervisor. Docket # 11716, at 2; Docket # 117-18, at 2.

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2.

The “Creating a Front Store Master Schedule” section of two
“Learner’s Guide[s],” which includes that “[a] member of the
Management Team must be scheduled for each hour the store is
open.” Docket # 117-19, at 10; Docket # 117-20, at 7.

3.

A CVS guide that provides for one unpaid 30-minute meal break for
each six or eight-hour period worked. Docket # 117-21, at 7.

4.

CVS’s Employment Handbooks that instructs employees that
though they “may wish to work through [their] meal or rest period . .
. this is not allowed under many state laws,” that in states that do
allow this, employees “may not do so without prior approval of
[their] supervisor,” and that if they “do work through an unpaid meal
period or [their] unpaid meal period is interrupted, [they] should
notify [their] manager to ensure that [their] working time is correctly
recorded in [their] pay.” Docket # 117-22, at 4; Docket # 117-23, at
4; Docket # 117-24, at 4.

5.

CVS’s Employment Handbooks that do not specifically inform
employees that remaining in the store constitutes “work,” Docket #
117-22, at 4; Docket # 117-23, at 4; Docket # 117-24, at 4; Docket
# 117-26, at 2.

Together, plaintiffs claim, this “evidence provides common proof of CVS’ liability.”
Docket # 116, at 17.
However, contrary to plaintiffs’ contention, this evidence on its face does not
provide common proof of an illegal practice such that it can resolve all of the
putative class members’ claims. The policies themselves do not necessitate that a Shift
Supervisor remain in the store during unpaid meal breaks or that a Shift Supervisor
must take a meal break when he or she is the only Front Store Manager present.3 And

3
For exam ple, Bourassa testified that he took his m eal break around noon, when the store
m anager typically arrived around 1:00 or 1:30 pm each day, because he could not wait until 1 pm to have
lunch, Docket # 117-2, at 50–51, and that it was “com m on sense” not to leave the store when he was the
only m anager personnel present when taking lunch, id. at 25–26. That Bourassa took his m eal break
when no other m anagem ent personnel was present was not m andated by CVS policy. Beale testified that
the weekly work schedules did not indicate when em ployees should take their m eal breaks, Docket # 1171, at 16–17, but that she was required to stay in the store “between 60 and 70 percent of the tim e, m aybe
higher,” id. at 39; Harris testified that he was required to rem ain in the store “[p]robably pretty close to 99

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to the extent a situation does arise where the Shift Supervisor is required to remain in
the store during a meal break, then CVS’s policies suggest that he or she would be
compensated. See Docket # 117-22, at 4; Docket # 117-23, at 4; Docket # 117-24, at 4
(Employment Handbooks explaining that if employees “do work through an unpaid meal
period or [their] unpaid meal period is interrupted, [they] should notify [their] manager to
ensure that [their] working time is correctly recorded in [their] pay”).
Accordingly, even assuming a policy that Shift Supervisors could not leave
during a meal break when there was no other management personnel present,
resolving whether Shift Supervisors were actually required to clock out — or were not
paid — during these in-store meal breaks cannot be resolved through common
evidence.4 Plaintiffs’ testimony regarding whether they were paid for meal breaks for
which they remained in store, and if not, why, varies by the individual. For example,
Beale testified that she was directed to clock-out for her in-store meal breaks and
“believe[s]” that was part of the policy, Docket # 117-1 at 36. Bourassa testified that
CVS policy required him to clock-out during meal breaks in which he remained in the
store, Docket # 117-2 at 44, and that when he would clock-in, he tried to keep himself

percent of the shifts,” Docket # 117-3, at 17, “[b]ecause [he] was the only key holder and/or person who
could override accounts, take m oney out of drawers,” and put m oney into the safe, id. at 18; Hilario
testified that she always rem ained in the store because she was the only supervisor present for her shift,
Docket # 117-4, at 8; and Mello testified that she was the only supervisor on duty usually on the weekends
or after 3 pm , but the shifts “were a lot heavier staffed during the days.” Docket # 117-5, at 31. This
testim ony suggests that these situations arose out of individual store practices, not a com pany-wide
policy. Further, in Harris’s case, he testified that his typical shift was 4 pm to 10 pm , calling into question
whether he was entitled to an unpaid m eal break at all. Docket # 117-3, at 17.
4

I assum e for purposes of this decision that rem aining in the store during an unpaid break
is considered work. See DeVito v. Longwood Sec. Servs., Inc., No. SUCV201301724BLS1, 2016 W L
8200495, at *3 (Mass. Super. Dec. 23, 2016) (“The thirty-m inute m eal tim e is com pensable unless the
em ployee is relieved of all work-related duties.”).

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“at 40 hours and under, so as not to go over time, . . . and [he] didn’t want to get the
manager in trouble, so [he] would deduct the time and make it even,” id. at 45. Hilario
testified that she took her unpaid meal breaks in the store because that store manager
instructed her to do so, Docket # 117-4 at 9, and that she knew that working off the
clock was contrary to CVS’s policy, id. at 10, but that she did not speak to anyone in
human resources or use the ethics line because she “didn’t have an issue with it at the
time,” id. at 12. And Mello testified that “even when [she] didn’t clock out, . . . [her]
manager would manually change [her] time card to include the break that [she] should
have taken but couldn't have because duty called.” Docket # 117-5, at 21. Meanwhile,
Joanne Borden, a CVS Senior Advisor Employee Relations Manager, testified that her
“understanding of the Massachusetts law is that the employee needs to be completely
relieved of duties” or the meal break should be paid, and that “[y]ou’re not completely
relieved of duties if you're not able to leave the store.” Docket # 131-1, at 49. Borden
stated that she “communicated to managers clarity around meal breaks and when they
should be paid and unpaid.” Id. at 50.
In short, evaluating plaintiffs’ claims “depends upon the answers to two
questions,” Raposo, 293 F.R.D. at 56. First, were putative class members required to
remain in the store during meal breaks? Second, if putative class members did so,
were they required to clock-out? See id. Plaintiffs’ maintain that CVS’s policies allow
both questions to be answered in the affirmative. However, plaintiffs are not alleging
that any individual policy is per se illegal; rather that these policies were implemented in
a way leading to an illegal practice. And so, examining the policies on their face does
not lead to affirmative answers. To the extent plaintiffs implicitly allege a common
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practice that was illegal, their evidence is insufficient to resolve these inquiries on a
class-wide level. Compare Wal-Mart, 564 U.S. at 358 (finding that plaintiffs’ “anecdotal
evidence . . . is too weak to raise any inference that all the individual, discretionary
personnel decisions are discriminatory”), with Bell v. PNC Bank, Nat’l Ass’n, 800 F.3d
360, 375 (7th Cir. 2015) (finding commonality satisfied when plaintiff “offered evidence
that the denial of overtime pay came from a broader company policy and not from the
discretionary decisions of individual managers”). Therefore, neither of the proposed
classes satisfies the commonality requirement. See Garcia v. E.J. Amusements of
N.H., Inc., 98 F. Supp. 3d 277, 285–86 (D. Mass. 2015) (collecting cases and
explaining that “[i]n wage and overtime cases, . . . courts have rejected class
certification where a determination of liability would require a burdensome inquiry into
each employee’s individual circumstances,” while “courts have found the commonality
requirement met where employees alleged per se illegal wage policies that violated the
rights of all class members”).
2.

Typicality and Adequacy

In light of my holding on commonality, which applies to both classes, I do not
reach CVS’s argument that Mello’s claim is not typical of the Second Class or that she
cannot adequately represent the Second Class.
C.

Rule 23(b)(3) Predominance Requirement

Although the lack of commonality is sufficient to deny class certification, cf.
Raposo, 293 F.R.D. at 57–58, I address the predominance requirement as an
independent basis of denial. See Wal-Mart, 564 U.S. at 368 (Ginsburg, J., concurring

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in part and dissenting in part) (suggesting that “the Court imports into the Rule 23(a)
determination concerns properly addressed in a Rule 23(b)(3) assessment”).
Rule 23(b)(3) requires that “the court finds that the questions of law or fact
common to class members predominate over any questions affecting only individual
members, and that a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). “[M]atters pertinent to
these findings include”:
(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already
begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Id.
“The Rule 23(b)(3) predominance inquiry tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 623 (1997). “‘[T]he predominance criterion is far more
demanding,’ . . . than the commonality requirement.” In re New Motor Vehicles
Canadian Exp. Antitrust Litig., 522 F.3d 6, 20 (1st Cir. 2008) (first alteration in original)
(quoting Amchem, 521 U.S. at 624); see also Comcast, 133 S. Ct. at 1432 (“If anything,
Rule 23(b)(3)'s predominance criterion is even more demanding than Rule 23(a).”).
“Under the predominance inquiry, ‘a district court must formulate some prediction as to
how specific issues will play out in order to determine whether common or individual
issues predominate in a given case.’” New Motor Vehicles, 522 F.3d at 20 (quoting
Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 298 (1st Cir. 2000)). “Part of
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the rationale for requiring predominance . . . to bring a class action is to ensure that the
action ‘will achieve economies of time, effort, and expense, and promote . . . uniformity
of decision as to persons similarly situated, without sacrificing procedural fairness or
bringing about other undesirable results.’” George v. Nat'l Water Main Cleaning Co.,
286 F.R.D. 168, 178 (D. Mass. 2012) (quoting Amchem, 521 U.S. at 624).
Here, plaintiffs claim that “[c]ommon questions predominate because all Class
Members’ claims turn on whether Massachusetts law requires CVS to compensate Shift
Supervisors for meal breaks during which CVS required them to remain on store
premises.” Docket # 116, at 19. As discussed above, even assuming the answer to
this question is yes, several questions remain that require individualized inquiries.
Specifically, even if the law requires compensating Shift Supervisors for remaining in
the store during meal breaks, whether Shift Supervisors were required to stay in the
store during these breaks and whether they were compensated for this time varies by
plaintiff. That is, the proposed classes are not “sufficiently cohesive to warrant
adjudication by representation,” Amchem, 521 U.S. at 623.
IV.

Conclusion
Plaintiffs’ Amended Motion for Class Certification (Docket # 115) is DENIED.

July 12 2017
DATE

/s/Rya W . Zobel
RYA W . ZOBEL
SENIOR UNITED STATES DISTRICT JUDGE

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