Local 589, Amalgamated Transit Union et al v. Massachusetts Bay Transportation Authority
Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered For the reasons stated herein, 82 Motion to Certify Class is DENIED. A Status Conference is set for September 27, 2016 at 11:00 AM in Courtroom 17. (Montes, Mariliz)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
LOCAL 589, AMALGAMATED
TRANSIT UNION, PARTICK F. HOGAN,
TIMOTHY C. BROWN, HERIBERTO
CORA, ANDREW HUNTER, DAVID
JORDAN, STEVEN MAHER, DENNIS
PERRY, ALLEN R. LEE, TRACEY
SPENCER, JEFFREY WILLIAMS, and all
others similarly situated,
Civil Action No. 13-cv-11455-ADB
Memorandum and Order
September 20, 2016
Plaintiffs, ten named Massachusetts Bay Transportation Authority (“MBTA”) employees
and their union, claim that they are owed compensation from defendant MBTA for after-work
and between-shift travel, pursuant to the Fair Labor Standards Act and Massachusetts wage and
hour laws. Currently pending is the Plaintiffs’ motion for class certification under Fed. R. Civ. P.
23 (“Rule 23”). [ECF No. 82]. For the reasons stated herein, the motion for class certification is
Factual and Procedural Background
Plaintiffs initiated this putative class action on June 17, 2013, on behalf of MBTA bus
operators, train operators, train attendants, streetcar operators, trackless trolley operators and
customer service agents who were allegedly required to travel from one assigned location to
another during their workday without compensation. [ECF No. 1]. The named Plaintiffs are ten
MBTA employees, who are either full-time bus operators or train operators/attendants, and Local
589, Amalgamated Transit Union (“Local 589”), the union that represents the affected MBTA
employees. Id. at ¶¶ 1-11.
In their Amended Complaint, filed in November 2013 [ECF No. 31], Plaintiffs claimed
that they were not being adequately compensated for after-work and between-shift travel. As
alleged, part-time and full-time MBTA employees often end their work days in a place different
from where they began, or start shifts some place other than where their previous shift ended.
[ECF No. 31 ¶¶ 25-31]. According to Plaintiffs, the employees are generally not compensated for
the time required at the end of the day to return to their original starting point (“start-end” travel
time) or between shifts to change locations (“split-shift” travel time). Id. In their Amended
Complaint, Plaintiffs asserted that they are owed compensation for this start-end and split-shift
travel time under the United States Portal to Portal Act, 29 U.S.C. § 251 et seq., the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq., and the Massachusetts Wage Act, Mass. Gen. L. ch. 151,
§ 1 et seq. Id. ¶¶ 32-44.
In a February 4, 2014 electronic order, Judge Woodlock, who was then assigned to this
case, denied without prejudice both the MBTA’s partial motion to dismiss and Plaintiffs’ motion
to certify the class. [ECF No. 39]. Plaintiffs had moved to certify a class of all persons who,
during the period covered by the lawsuit, were employed by the MBTA as bus operators, rapid
transit motorpersons, street car motorpersons, customer service agents, train attendants, gate
persons, hub station monitors and hub station access clerks. [ECF No. 29].
In June 2014, the parties cross-moved for summary judgment and Plaintiffs renewed their
motion for class certification. [ECF Nos. 44, 51]. At the December 2014 hearing, Judge
Woodlock denied the renewed motion for class certification without prejudice. [ECF No. 61]. In
a March 31, 2015 opinion, Judge Woodlock granted the MBTA’s motion for summary judgment
in part [ECF No. 65], holding that Plaintiffs’ claims for start-end travel compensation should be
dismissed, but that their claims for split-shift travel compensation could proceed, pending further
factual development. He found that split-shift travel is generally compensable under the FLSA,
but that without additional information, such as the individual travel time and break schedules of
the employees, he could not determine whether each individual plaintiff had been
undercompensated. Id. at 26-27. In his summary judgment opinion, Judge Woodlock reiterated
that this case was “not ready to be framed for consideration of class certification.” Id., at 1, n. 1.
On June 9, 2015, while discovery was ongoing, this matter was randomly reassigned to this
Court after Judge Woodlock assumed senior status [ECF No. 70].
On October 15, 2015, Plaintiffs moved to amend the complaint to add as named plaintiffs
approximately 1,600 MBTA operating employees of various classes who had allegedly been
affected by the MBTA pay practices at issue. [ECF No. 73]. The Court denied the motion on
November 20, 2015, finding that the Plaintiffs could not use a motion to amend, filed two-and-ahalf years in the case, to circumvent the challenges of class certification. [ECF No. 77]. Given
the number and variety of employees the Plaintiffs sought to add, the Court found that
“[a]llowing the Motion to Amend would thwart judicial efficiency and create substantial
logistical difficulties in an already fact-intensive, protracted case.” Id. at 6-7.
After denying the Motion to Amend, the Court entered a modified scheduling order
requiring the Plaintiff to move for summary judgment by March 9, 2016. [ECF No. 79]. Rather
than moving for summary judgment, however, on March 4, 2016 the Plaintiffs again moved for
class certification under Rule 23, seeking certification of a class “comprised of MBTA workers
who were compelled to travel from one place in the MBTA service area to another, midday,
without compensation in order to resume duties operating MBTA vehicles.” [ECF No. 83 at 5].
Defendants opposed the motion on March 18, 2016 [ECF No. 85], Plaintiffs replied on April 1,
2016 [ECF No. 87], and the Court held oral argument on August 12, 2016. [ECF No. 98]. After
oral argument, each party filed a supplemental brief. [ECF Nos. 99 and 100].
To obtain class certification under Rule 23, Plaintiffs must first satisfy the four
requirements of Rule 23(a). They must demonstrate that:
(1) the class is so numerous that joinder of all members is impracticable; (2)
there are questions of law or fact common to the class; (3) the claims or
defenses of the representative parties are typical of the claims or defenses
of the class; and (4) the representative parties will fairly and adequately
protect the interests of the class.
Fed. R. Civ. P. 23(a). These requirements “ensure that the named plaintiffs are appropriate
representatives of the class whose claims they wish to litigate.” Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 3449 (2011). “The Rule’s four requirements—numerosity, commonality,
typicality, and adequate representation—’effectively limit the class claims to those fairly
encompassed by the named plaintiff’s claims.’” Id. (quoting General Telephone Co. of
Southwest v. Falcon, 457 U.S. 147, 156 (1982)).
Because the Plaintiffs seek money damages, they must also satisfy Rule 23(b)(3)’s
predominance and superiority requirements. Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036,
1053 (2016) (citing Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013)). Rule 23(b)(3)
requires a showing 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).
“In adding predominance and superiority to the qualification-for-certification list, the Advisory
Committee sought to cover cases in which a class action would 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.” Amchem
Prod., Inc. v. Windsor, 521 U.S. 591, 615 (1997) (quotation marks omitted).
In addition to the explicit requirements of Rule 23, there is also an implicit requirement
that the proposed class be ascertainable. Donovan v. Philip Morris USA, Inc., 268 F.R.D. 1, 9
(D. Mass. 2010) (“While not explicitly mentioned in Rule 23, an implicit prerequisite to class
certification is that a ‘class’ exists—in other words, it must be ‘administratively feasible for the
court to determine whether a particular individual is a member.’”) (quoting Kent v. SunAmerica
Life Ins. Co., 190 F.R.D. 271, 278 (D. Mass. 2000)); see also In re Nexium Antitrust Litig., 777
F.3d 9, 19 (1st Cir. 2015) (“[T]he definition of the class must be ‘definite,’ that is, the standards
must allow the class members to be ascertainable.”). A class is ascertainable where it is defined
in terms of an “objective criterion.” Matamoros v. Starbucks Corp., 699 F.3d 129, 139 (1st Cir.
“Rule 23 does not set forth a mere pleading standard. A party seeking class certification
must affirmatively demonstrate his compliance with the Rule.” Wal-Mart Stores, Inc., 564 U.S.
at 350. The Court must engage in a “rigorous analysis,” which may involve “prob[ing] behind
the pleadings” in order to decide whether certification is appropriate. Id. (quoting Gen. Tel. Co.
of Sw. v. Falcon, 457 U.S. 147, 160 (1982)).
Rather than move for summary judgment, Plaintiffs have again moved for class
certification, despite the fact that class certification has already been denied twice—first in
February 2014 and then in December 2014. The Plaintiffs have not demonstrated any change in
the underlying facts nor any discovery developments that would warrant a different outcome this
The breadth of the proposed class—which includes full-time and part-time employees,
bus and streetcar operators, and any number of split-shift travel combinations—virtually assures
that individualized questions would overwhelm any common ones. Rule 23(b)’s demanding
predominance standard requires that common questions so dominate the inquiry that class
treatment “would 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.” Amchem Prod., Inc., 521 U.S. at 615 (1997) (quotations marks
omitted). “The predominance inquiry asks whether the common, aggregation-enabling, issues in
the case are more prevalent or important than the non-common, aggregation-defeating,
individual issues.” Tyson Foods, Inc., 136 S. Ct. at 1036 (quotation marks omitted).
Plaintiffs have not satisfied this rigorous standard. Whether an MBTA employee engaged
in uncompensated split-shift travel, and how much travel time was uncompensated, is a
fundamentally individualized inquiry. In any given year or even quarter, there are thousands of
split-shifts with different swing-on and swing-off points and multiple ways to get from one point
to another. The proposed class would include employees who traveled between different
locations using different modes of transportation and under different conditions (i.e., during rush
hour, on weekends, during snow storms, etc.). As named-Plaintiff Patrick Hogan explained, his
own travel time could vary from “5 to 45 minutes depending on” factors such as “where I was
traveling to and from” as well as “traffic, weather, delays with service, etc.” [ECF No. 85-3 at 3].
Each potential class member’s travel time is similarly variable and specific to him or her. The
MBTA’s liability to each potential class member turns on individualized questions that vary not
only from individual class member to individual class member, but from day-to-day for a
Plaintiffs claim that the Supreme Court’s recent decision in Tyson Foods, Inc. v.
Bouaphakeo, 136 S. Ct. 1036 (2016) supports class certification. Tyson Foods, however, is not
only distinguishable but also demonstrates why class certification would be inappropriate here.
In Tyson Foods, employees in the kill, cut, and retrim department of a pork processing plant in
Iowa sued Tyson, their employer, to receive compensation for the time spent “donning and
doffing” protective gear before and after their shifts. The Supreme Court found that the
individual employee’s experiences were sufficiently similar—”each employee worked in the
same facility, did similar work, and was paid under the same policy”—that the Plaintiffs could
use an expert’s representative sample of the time it took workers to change clothes in order to
establish class-wide liability. Tyson Foods, Inc., 136 S. Ct. at 1048. An expert determined the
average amount of time workers spent taking protective gear on and off, based on video
recordings of donning and doffing at the plant. The Supreme Court found that the expert’s
estimate, which would have been sufficient to sustain a jury finding in an individual employee’s
action, ensured that individualized questions would not predominate. Id.
The members of the Tyson Foods class were seeking compensation for essentially the
identical task—donning and doffing before work in a single Iowa pork processing plant—and the
approximate duration of that task could be estimated through representative sampling. Here,
although the members of the class are all seeking compensation for the same activity—split-shift
travel—it is not as readily generalizable as the donning and doffing in Tyson Foods. As already
discussed, members of the class traveled to different locations, under different conditions, using
different modes of transportation. Furthermore, pursuant to the Collective Bargaining Agreement
between Local 589 and the MBTA, employee travel was compensated differently depending on,
among other things, whether they were part-time or full-time and if they traveled back to their
original starting point or elsewhere between shifts.1 Further, unlike in Tyson Foods, Plaintiffs
(three years into this litigation) have not offered any tangible way to overcome these individual
differences, such as through expert testimony or other statistical evidence.
Deciding what questions predominate requires the court to “formulate some prediction as
to how specific issues will play out.” Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288,
298 (1st Cir. 2000); see also Madison v. Chalmette Refining, LLC, 637 F.3d 551, 555 (5th Cir.
2011) (“Determining whether the plaintiffs can clear the predominance hurdle set by Rule
23(b)(3) requires district courts to consider how a trial on the merits would be conducted if a
class were certified.”) (quotation marks omitted). Given the late stage of the proceeding, it is not
difficult to predict how a trial would play out. The one question common to the proposed class
members—whether split-shift travel is compensable under the FLSA—has already been
resolved, and what remains is to determine individual liability and damages, which will be a
highly individualized undertaking, or at least would have to be done with much more discrete
groups of employees than the class proposed here. In other words, while split-shift travel is
generally compensable, whether the MBTA is liable to a specific employee for split-shift travel,
and then for how much, is beset with individual questions that cannot be efficiently resolved by a
Under the CBA, if a full-time employee works a split shift and the second route starts in a
different place from where the first shift began, the employee receives twenty minutes of pay,
called a swing-on allowance. [ECF No. 66 at 1]. As Judge Woodlock noted, even employees that
receive a swing-on allowance may be undercompensated, since they are not paid for any travel
time in excess of twenty minutes. [ECF No. 65 at 16].
class action that involves such a large group of employees, routes, methods of transportation, and
This outcome should not come as a surprise to the Plaintiffs. When the parties’ moved for
summary judgment, Judge Woodlock could not fully resolve this action because he needed
additional information about even the individual named Plaintiffs. He found that, “[t]he summary
judgment record contain[ed] significant gaps about the individual travel time and break
schedules of the plaintiffs,” and that, “[i]n the absence of specific information about the break
and travel times of the plaintiffs in this case,” he could not determine whether there was any
violation of the FLSA or whether any travel time beyond that for which the Plaintiffs were
compensated may be de minimis in individual cases. [ECF No. 65 at 27]. At trial, these same
individual facts, such as travel time and break schedules, would need to be established, not only
for the ten named Plaintiffs, but also for an entire class that could include well over 1,000
employees.2 It will be hard enough to do this with the ten named Plaintiffs, and Plaintiffs do not
appear to have given a lot of thought as to how the Court could accomplish this task for the
entire proposed class. Accordingly, despite certain similarities among the proposed class
members, there are unmanageable differences, affecting both liability and damages, which
preclude class certification.
For the reasons stated herein, the Plaintiffs’ Motion for Class Certification [ECF No. 82]
Although the rectigraphs produced in discovery, as the Plaintiffs claim [ECF No. 85 at 3],
reveal the location of swing-on and swing-off points, they do not establish how long it takes any
given individual on any given day to get from one point to another, which is a completely
individualized inquiry, dependent on a variety of factors, as more fully discussed herein.
Rather than continue to squabble over how this case is going to be structured, it might
behoove all parties to put some effort into devising a workable solution to the issue of how those
owned money can be most efficiently compensated. Instead of moving for class certification
three separate times, the Plaintiffs might instead have proposed smaller classes in which the class
members would have more common claims. Also, the defendant likely owes some money to at
least some employees. Because the passage of time will not change that fact, the defendant too
might consider how to best bring this litigation to a fair and timely resolution. In an effort to
move this along, with or without the cooperation of the parties, the Court has scheduled a status
conference for September 27, 2016 at 11:00 in Courtroom 17. This status conference will
function both to get this case back on track to resolution and as an opportunity for the parties to
propose how to efficiently resolve the split-shift claims of MBTA employees not named in this
action, whether through the appointment of a Special Master, the initiation of related lawsuits by
subgroups of MBTA employees, or otherwise.
Dated: September 20, 2016
/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT COURT JUDGE
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