Walker v. Osterman Propane LLC et al

Filing 136

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered.The Court ALLOWS Plaintiffs' motion for class certification (Dkt. No. 112 ) only as to their theory of liability that drivers are not fully relieved of work-related duti es during their lunch breaks. The Court certifies the following class:All current and former propane delivery drivers in Massachusetts employed by Osterman Propane from February 4, 2014 through the present.Plaintiffs' counsel is APPOINTED as counsel for the Class. A status conference will be held on November 4, 2019 at 10:00 am.SO ORDERED.(Lara, Miguel)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
DANIEL WALKER and ROBERT PISKADLO, )
on behalf of themselves and all
)
others similarly situated,
)
)
Plaintiffs,
)
)
Civil Action
v.
)
No. 17-10416-PBS
)
OSTERMAN PROPANE LLC and VINCENT
)
OSTERMAN,
)
)
Defendants.
)
______________________________
)
MEMORANDUM AND ORDER
October 21, 2019
Saris, C.J.
INTRODUCTION
Osterman Propane LLC (“Osterman”) is a propane delivery
company with eleven branches in Massachusetts. Daniel Walker and
Robert Piskadlo (“Plaintiffs”) are former employees of Osterman.
Plaintiffs filed a class action complaint alleging that Osterman
underpaid its propane delivery drivers in violation of the
Massachusetts Wage Act, Mass. Gen. Laws ch. 149 § 148. They seek
to certify a class of “all current and former propane delivery
drivers in Massachusetts employed by Osterman Propane from
February 4, 2014 through the present.”
Plaintiffs put forth two theories for why they and other
putative class members have been systematically underpaid by
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Osterman. First, they allege that Osterman automatically
deducted a half-hour lunch break from drivers’ reported time,
even though Osterman knew or should have known that drivers did
not always take a break. Second, Plaintiffs argue that drivers
are not fully relieved of work duties during ostensible lunch
breaks and so should always be paid for that half hour.
After hearing, the Court ALLOWS Plaintiffs’ motion for
class certification (Dkt. No. 112) based on their second theory
of liability only.
FACTUAL BACKGROUND
I.

The Parties
Osterman is primarily a propane delivery company formerly

owned by Vincent Osterman. There are eleven Osterman branches
throughout Massachusetts: Adams, Ashburnham, Bridgewater, Lee,
Methuen, Northbridge, Palmer, Southbridge, Sterling, Sunderland,
and Taunton. Osterman describes its business model as
“decentralized” and “branch-based.” Dkt. No. 122 at 6. The
company touts one of its strengths as “flexibility” due to “few
standard policies.” Dkt. No. 113-6 at 12.
Named plaintiff Daniel Walker was a delivery driver
employed at Osterman’s Methuen branch from January 5, 2015 to
September 21, 2016. The second named plaintiff, Robert Piskadlo,
worked as a delivery driver and then service technician also in
the Methuen branch from November 14, 2012 to September 1, 2017.
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II.

Osterman’s Company Policies and Practices
a. Hours and Timesheets
Osterman’s propane delivery drivers are typically scheduled

for eight-and-a-half hour shifts from 7:00 am to 3:30 pm, Monday
through Friday. Drivers are paid one-and-a-half times their
regular rate for all hours worked in excess of forty hours per
week. From October to April, which is the “busy season” for
propane delivery, drivers often log overtime hours by working
longer than their assigned shift or working on the weekend.
Drivers report their hours on timesheets, which they
complete at the end of each day and submit weekly to their
branch manager. Each branch provides its own timesheets. Except
for a period in which the Methuen branch used punch cards to
corroborate drivers’ time in and out, drivers complete their
timesheets on the honor system. The branch manager reviews the
timesheets and then a designated person at each branch — often
also the manager — manually inputs the hours into the company’s
payroll system, Workday. Osterman’s Employee Handbook instructs
employees to consult their branch managers about their hours and
how to complete their timesheets.
b. Meal Break Policies and Practices
Plaintiffs contend that Osterman has an unwritten but
company-wide policy to automatically deduct half an hour from a
driver’s reported hours even when the driver does not take a
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lunch break. Plaintiffs present sample timesheets from ten of
the eleven branches that contain text across the top, “LUNCH
HOURS ARE DEDUCTED.” Dkt. No. 113-23. A timesheet from the
remaining branch contains text at the bottom reading: “Lunches
will be deducted unless you indicate ‘No Lunch’ on time sheet.
‘NO LUNCH’ must be pre-approved by manager.” Id. at 11.
The record reflects that the different branches handled
lunch breaks in various ways. Timesheets are inconsistent across
and within branches during the class period. For example, one
timesheet from the Ashburnham branch states only “LUNCH HOURS
ARE DEDUCTED” while another from the same branch contains the
additional text, “UNLESS YOU INDICATE ‘NO LUNCH’ ON TIME CARD.”
Dkt. Nos. 113-10 at 4; 113-23 at 5. Two additional timesheets
from unspecified branches do not reference a deduction at all.
Drivers had mixed experiences reporting that they had
worked through lunch. The record suggests some drivers were able
to report they had not taken a break simply by leaving the lunch
column blank. In the timesheets for Lee driver Todd Beaudin and
Southbridge driver Jeff Langeum, the driver neither indicated a
lunch break nor wrote “No Lunch.” The totals on those timesheets
reflect no deduction of time for a lunch break.
Other drivers had to affirmatively write “No Lunch” or
another similar indication. Drivers at the Sterling and
Northbridge branches said they routinely marked “No Lunch” days
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and were paid with no deduction. The record contains timesheets
with “No Lunch” indications from all but one branch that are
accurately reflected in corresponding Workday records. These
include timesheets from both named plaintiffs, who wrote “No
Lunch” on several occasions and were paid accordingly.
But some drivers were unable to report “No Lunch” when they
had not taken a break. The named plaintiffs, who were drivers at
the Methuen branch working under branch manager Mike Smith,
reported that Smith discouraged drivers from writing “No Lunch”
during the regular work week. Dkt. Nos. 120-27 at 12 (“At one
point, some of us wrote ‘no lunch’ on some of our timesheets and
[Smith] rejected them and made us cross them off and submit them
again the right way, as he called it.”); 113-1 at 11 (“[Smith]
would yell at us and say, ‘You guys are nickel and diming me. I
give it all back to you in the summer, whatever you think you're
missing out on in the winter.’”). Two other drivers at the
Methuen branch had similar experiences. Dkt. Nos. 113-21 at 5
(“I almost never took the lunches, but we were supposed to write
them down as we did.”); 113-14 at 20 (“[Smith] said they deduct
a half hour lunch, but there was never any time to take lunch.”)
Drivers at other branches were also unable to write “No
Lunch” on their timesheets. One driver from Adams testified that
his manager told him, “you can’t write that you didn’t take a
lunch on there; you have to take your lunch, even if you don’t
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have time for it.” Dkt. No. 113-13 at 8. In Ashburnham, lunch
was also deducted whether the driver took a break or not. One
driver said he therefore marked his end time each day as half an
hour later than he left, so the total hours after the deduction
still reflected his actual hours worked.
Osterman’s corporate representative testified: “There is
not a standardized meal break policy.” Dkt. No. 113-3 at 14.
Employee handbooks for the relevant period contain no policies
or instructions regarding lunch breaks.
Instead, each manager developed their own practices. Mike
Smith, the Methuen branch manager, testified that he did nothing
to ensure lunch breaks were taken or recorded, relying on the
driver to take the break and report it. If a driver did not
write “No Lunch,” Smith assumed a break was taken and deducted
half an hour by manually entering a break from 12:00-12:30 pm
into the Workday system. Other managers expressly made lunch
breaks optional in the busy season and instructed drivers to
mark “No Lunch” if the driver chose to work through. By
contrast, branch managers at the Bridgewater and Lee branches
reported that unless a driver made an affirmative indication of
a lunch break, no break was deducted.
Other branch managers made lunch breaks mandatory. For
example, the Ashburnham branch manager instructed drivers to
always take a lunch break and to simply complete their shift
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later, with overtime as appropriate. The Palmer branch manager
similarly denied requests to skip lunch based on his
understanding that breaks were mandatory.
III. Safety Training and Regulations
Prior to starting with Osterman, all drivers must have a
commercial driver’s license (“CDL”) with a hazardous materials
(“Hazmat”) endorsement. After their hire, drivers must also take
part in Certified Employee Training Programs (“CETP training”).
Drivers from all branches attend a centralized CETP training at
an Osterman office, run by an Osterman trainer. The CETP
training covers rules and regulations regarding propane delivery
and safety. A driver is not allowed to do anything during a
break that would be “in violation of the CTEP [sic] training.”
Dkt. No. 113-3 at 17.
The parties agree that, under federal law, propane is a
Division 2.1 flammable material and not a Division 1 explosive
material. See 49 C.F.R § 173.115. By regulation, propane truck
drivers are required to maintain a 100-foot unobstructed view of
their vehicles when they are on a public street or highway, or
on the shoulder of a public highway. 49 C.F.R. § 397.5(c).
However, propane delivery vehicles do not need to be “attended
at all times,” as they would if transporting an explosive
material. 49 C.F.R. § 397.5(a).

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Nonetheless, multiple drivers understood they were required
to remain within a certain distance — most commonly, 100 feet —
and line of sight of their propane delivery vehicle during lunch
breaks. Drivers understood these obligations to arise from
several different sources; some cited “federal law,” others
cited “[Department of Transportation (DOT)] regulations,” and
another cited instruction from the Department of Homeland
Security at his interview for his Hazmat endorsement. Dkt. Nos.
113-1 at 13; 113-2 at 12; 113-17 at 7; 113-20 at 6-7.
Drivers also gave different responses when asked where they
had been taught these restrictions. One driver, in the
Sunderland branch, received instructions from his branch
manager. Three drivers testified that the physical distance and
line-of-sight requirements were covered in the CETP training.
Other drivers testified they did not receive those
instructions in CETP training or from Osterman. Dkt. Nos. 113-18
at 5 (Q: “Did CETP training address in any way where you could
park your truck?” A: “Not really.”); 113-21 at 7 (Q: “But did
anyone at Osterman tell you you can’t leave the truck during a
meal break?” A: “No. I mean, we all take HAZMAT. We have
endorsements on our license. You take that test. You know this
already.”) According to another driver, the CETP trainers told
drivers regarding parking rules: “You all have CDL licenses. You
know the laws.” Dkt. No. 113-2 at 12.
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Not all drivers believed they were subject to a physical
distance or line-of-sight requirement. Some drivers used their
lunch breaks to run personal errands, including going to WalMart or the bank. At least nine additional drivers wrote in
declarations that they felt free to use their lunch breaks as
they pleased with no restrictions.
Osterman’s Director of Safety and Training wrote in an
affidavit, “CETP training does not include any requirement for
propane delivery drivers to keep Osterman’s trucks within their
lines of sight at all times or within a certain number of feet
from their bodies.” Dkt. No. 120-67 ¶ 10. Osterman’s Hazardous &
Emergency Security Plan provides, “No company vehicle shall be
left unattended until the driver is satisfied that the vehicle
is secure from moving.” Dkt. No. 113-24 at 10 (emphasis added).
It continues, “drivers are expected to park in safe, well lit,
designated truck parking locations only (such as reputable truck
stops or high-traffic, major rest areas).” Id. at 11.
MOTION FOR CLASS CERTIFICATION
I.

Legal Standard
On a motion for class certification alleging violations of

the Massachusetts Wage Act, the Court employs the “conventional
class certification analysis under Fed. R. Civ. P. 23.” Garcia
v. E.J. Amusements of N.H., Inc., 98 F. Supp. 3d 277, 283 (D.
Mass. 2015). Plaintiffs “bear[] the burden of ‘affirmatively
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demonstrating . . . compliance’ with the Rule 23 requirements.”
In re Nexium Antitrust Litig., 777 F.3d 9, 19 (1st Cir. 2015)
(quoting Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)).
A proposed class must satisfy four requirements under Rule
23(a): (1) “the class is so numerous that joinder of all members
is impracticable” (numerosity); (2) “there are questions of law
or fact common to the class” (commonality); (3) “the claims or
defenses of the representative parties are typical of the claims
or defenses of the class” (typicality); and (4) “the
representative parties will fairly and adequately protect the
interests of the class” (adequacy). Fed. R. Civ. P. 23(a).
The proposed class must also satisfy at least one provision
of Rule 23(b). For a proposed class under Rule 23(b)(3), like
the one here, Plaintiffs must show that: (1) “questions of law
or fact common to class members predominate over any questions
affecting only individual members” (predominance); and (2) “a
class action is superior to other available methods for fairly
and efficiently adjudicating the controversy” (superiority).
Fed. R. Civ. P. 23(b)(3).
Rule 23 contains an additional “implied requirement” of
ascertainability, which “essentially require[s] a putative class
to be ascertainable with reference to objective criteria.”
Romulus v. CVS Pharmacy, Inc., 321 F.R.D. 464, 467 (D. Mass.

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2017) (quoting William B. Rubenstein, Newberg on Class Actions
§ 3:1 (5th ed. 2017)).
“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, 28 (1st Cir.
2003). If legal or factual premises are disputed at the class
certification stage, the Court may “‘probe behind the pleadings’
to ‘formulate some prediction as to how specific issues will
play out’ in order to assess whether the proposed class meets
the legal requirements for certification.” In re New Motor
Vehicles Canadian Exp. Antitrust Litig., 522 F.3d 6, 17 (1st
Cir. 2008) (first quoting Gen. Tel. Co. of Sw. v. Falcon, 457
U.S. 147, 160 (1982), then quoting Waste Mgmt. Holdings, Inc. v.
Mowbray, 208 F.3d 288, 298 (1st Cir. 2000)).
II.

Analysis

Plaintiffs put forth two separate theories for liability
under the Massachusetts Wage Act. The Court analyzes each in
turn and certifies a class as to the second theory only.
a. First Theory of Liability: Automatic Deductions
Under Massachusetts law, employees are entitled to wages
for all hours worked. Mass. Gen. Laws ch. 149 § 148. Plaintiffs
assert that Osterman’s policy of automatically deducting half an
hour for lunch unlawfully deprives drivers of compensation
because drivers often work through lunch with no break.
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Defendants do not contest that the proposed class meets the
ascertainability and numerosity requirements, and the Court
agrees those requirements are met.
i. Ascertainability
Plaintiffs’ proposed class of propane delivery drivers in
Massachusetts employed by Osterman from February 4, 2014 through
the present is easily ascertainable through employment records.
See Matamoros v. Starbucks Corp., 699 F.3d 129, 139 (1st Cir.
2012) (finding proposed class of all baristas who worked during
the class period “ascertainable under the objective standard of
job titles”).
ii. Numerosity
“No minimum number of plaintiffs is required to maintain a
suit as a class action, but generally if the named plaintiff
demonstrates that the potential number of plaintiffs exceeds 40,
the first prong of Rule 23(a) has been met.” García-Rubiera v.
Calderón, 570 F.3d 443, 460 (1st Cir. 2009) (quoting Stewart v.
Abraham, 275 F.3d 220, 226–27 (3d Cir. 2001)). It is uncontested
that the proposed class would include over 100 drivers. The
Court finds that joinder of all these drivers would be
impracticable. Rule 23(a)(1)’s numerosity requirement is met.
iii. Commonality
To satisfy Rule 23(a)(2)’s commonality requirement, the
class claims must depend upon a “common contention” that is
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“capable of classwide 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.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350
(2011). Questions are common if they can “each be answered
either ‘yes’ or ‘no’ for the entire class” and “the answers will
not vary by individual class member.” Garcia, 98 F. Supp. 3d at
285 (quotation omitted). Commonality is generally satisfied
where plaintiffs challenge “a system-wide practice or policy
that affects all putative class members.” Overka v. Am.
Airlines, Inc., 265 F.R.D. 14, 18 (D. Mass. 2010) (quoting
Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001)).
Plaintiffs contend that commonality is met here because
“the claims arise out of a companywide policy or practice” of
automatic deductions for lunch breaks even when not taken.
An automatic meal deduction policy is not illegal on its
face. See Botero v. Commonwealth Limousine Serv. Inc., No. 12cv-10428-NMG, 2013 WL 3929785, at *8 (D. Mass. July 25, 2013)
(noting in a Fair Labor Standards Act case that “automatic meal
deduction policies are not per se illegal” (quotation omitted)).
“To prove . . . a claim [of unlawful meal break deductions]
plaintiffs must demonstrate that [the employer] knew or should
have known that drivers were working during those meal breaks.”
Raposo v. Garelick Farms, LLC, 293 F.R.D. 52, 56 (D. Mass.
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2013). After a rigorous analysis of the record, the Court
concludes that no common question would establish liability on a
class-wide basis under this test.
Plaintiffs have not affirmatively demonstrated that
Osterman had a company-wide “automatic deduction policy.” At
least two Osterman branch managers reported that their policy
was to deduct a lunch break only if a break was affirmatively
recorded. In addition, timesheets from two drivers in the Lee
and Southbridge branches show no affirmative indication of “No
Lunch” and yet their total hours show no deductions.
Even in branches that automatically deducted a break, the
record reflects a wide variety of practices. Some branch
managers took steps to prevent uncompensated work by, for
example, enforcing mandatory lunch breaks. Other managers
allegedly encouraged it by telling drivers to work through lunch
but nonetheless mark a lunch break. Drivers at some branches
could and did report “No Lunch” days with no apparent
discouragement or negative consequence. Drivers at other
branches found ways around the deduction policy by extending
their hours at the end of the day, thereby receiving
compensation for all hours worked.
Branch managers’ discretionary decisions regarding lunch
breaks preclude a common question of fact as to whether Osterman
knew or should have known drivers worked during meal breaks. See
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Dukes, 564 U.S. at 356 (holding that a policy of discretion
meets commonality only if there is “a common mode of exercising
discretion that pervades the entire company”); Romulus, 321
F.R.D. at 470 (denying certification in meal break case where
plaintiffs could not show that the challenged policies were
uniformly applied in an illegal way). Even Plaintiffs’ narrower
proposed class of all drivers with “no indication” on their
timesheet cannot meet the commonality requirement. There is no
common evidence across branches that Osterman deducted lunch
breaks not taken when a driver gave “no indication” on a
timesheet. The inquiry would be specific to each branch and, in
some cases, to each driver.
As a backstop, Plaintiffs contend that Osterman’s failure
to accurately determine and record when each driver took a break
each day is a per se violation of the employer’s duty to
maintain accurate records. But Osterman did keep timesheets and
relied on its employees to fill them out accurately on the honor
system. While some branch managers (e.g., in Methuen) likely
violated the Wage Act by deducting lunch breaks improperly,
there is no evidence this was a company-wide practice.
Even if a branch manager failed to properly check the
accuracy of drivers’ timesheets, Anderson v. Mt. Clemens Pottery
Co., 328 U.S. 680 (1946), does not recognize or create a
separate cause of action where an employer fails to keep
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accurate records. Anderson is concerned with the burden of proof
and calculation of damages where a plaintiff “proves” a wage
violation and “produces sufficient evidence to show the amount
and extent of [uncompensated] work as a matter of just and
reasonable inference.” Id. at 687-88. Whether Osterman violated
its duty to keep accurate records does not “resolve an issue
that is central to the validity” of Plaintiffs’ claim under the
Wage Act. At best, it could guide the Court’s analysis of
damages if an unlawful policy or practice is proven.
Another judge of this court examined a similar set of facts
in Raposo v. Garelick Farms, LLC and denied class certification
based on commonality. In Raposo, plaintiffs were former Garelick
Farms drivers who alleged “they were frequently forced to work
through meal breaks without compensation.” 293 F.R.D. at 53. The
court denied certification because “deposition testimony
indicate[d] that not all drivers worked through their meal
breaks” and “among drivers who did actually work through their
breaks, the reasons for doing so vary from driver to driver and
from day to day.” Id. at 56. The court continued that “some
drivers who worked through breaks were subsequently compensated
for that time after notifying their supervisor,” so “whether
drivers were compensated for working through breaks cannot be
answered either ‘yes’ or ‘no’ for the entire class.” Id. at 57
(quotation omitted).
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Plaintiffs’ effort to distinguish Raposo is unavailing.
Plaintiffs highlight that, in Raposo, drivers were required to
take thirty-minute meal breaks while Osterman had no policy to
ensure automatically deducted breaks were taken. But some
Osterman branch managers did require drivers to take meal
breaks, even if others made meal breaks optional either yearround or during the busy season.
The Court concludes commonality is not met. Plaintiffs have
failed to affirmatively demonstrate compliance with Rule 23 as
to their first theory of liability. 1
b. Second Theory of Liability: Work-Related Duties
Under Massachusetts law, “[w]orking time does not include
meal times during which an employee is relieved of all workrelated duties.” 454 C.M.R. § 27.02. Plaintiffs’ second theory
of liability is that drivers are entitled to compensation during
purported lunch breaks because they are not “relieved of all
work-related duties.” Specifically, Plaintiffs assert that
drivers must remain within a certain distance of their propane
delivery vehicle and keep the vehicle in their line of sight.

1

Even if commonality were met, Plaintiffs would be unable to
meet Rule 23(b)(3)’s “far more demanding” predominance
requirement. See In re New Motor Vehicles, 522 F.3d at 20
(quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 624
(1997)). Both liability and damages depend on numerous
individualized inquiries that would “inevitably overwhelm
questions common to the class.” See Comcast, 569 U.S. at 34.
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The Plaintiffs propose the same class of all current and
former propane delivery drivers in Massachusetts employed by
Osterman from February 4, 2014 through the present. The Court’s
earlier analysis of ascertainability and numerosity remains
applicable and is not repeated here.
i. Commonality
As discussed above, commonality is met where there is a
“common contention” that, if true, “will resolve an issue that
is central to the validity of each one of the [class] claims.”
Dukes, 564 U.S. at 350. As to their second theory of liability,
Plaintiffs catch a break.
“Wage claims involving system-wide practices or policies
are appropriate for class treatment because establishing
liability for one employee necessarily establishes liability for
the entire class.” Garcia, 98 F. Supp. 3d at 286. Relying on
depositions from putative class members, Plaintiffs allege that
the common Osterman-run CETP training imposes certain
restrictions on all drivers during lunch breaks.
Defendants counter that federal law does not require
drivers to remain within a certain distance and line-of-sight of
their vehicles. Under 49 C.F.R. § 397.5(c), propane delivery
drivers must comply with those restrictions only if they are on
a public street or highway, or on the shoulder of a public
highway. Defendants also point to declarations from drivers who
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did not believe they were subject to restrictions during breaks
and to an affidavit from Osterman’s Director of Safety and
Training that the CETP training does not include any such
requirements.
Plaintiffs have affirmatively demonstrated a common
question of fact whose answer will “resolve an issue that is
central to the validity” of their Wage Act claim. Dukes, 564
U.S. at 350. Namely, does the centralized CETP training instruct
drivers to abide by physical distance and line-of-sight
restrictions? The answer to this question can be answered “yes”
or “no” on a class-wide basis. Plaintiffs have submitted sworn
testimony by three drivers that they were trained to follow this
practice. To be sure, Defendants also submitted substantial
evidence that refutes these submissions, but the Court cannot
resolve that conflict here. A jury will have to determine the
“truth or falsity” of this common contention about the alleged
centralized training on a class-wide basis.
In addition, Plaintiffs’ second theory presents a common
question of law — do the alleged restrictions render drivers’
breaks compensable under the Massachusetts Wage Act? Whether
drivers are considered “relieved of all work-related duties” if
they are subject to the restrictions can be answered “yes” or
“no” on a class-wide basis. The Court expresses no views on the
merits of that legal question at this stage. See Amgen Inc. v.
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Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013) (“Rule 23
grants courts no license to engage in free-ranging merits
inquiries at the certification stage.”)
The Court concludes commonality is met.
ii. Typicality
Rule 23(a)(3)’s typicality requirement is met where “the
class representatives’ claims have the same essential
characteristics as the claims of the other members of the
class.” Garcia, 98 F. Supp. 3d at 288 (quoting Barry v. Moran,
05-cv-10528-RCL, 2008 WL 7526753, at *11 (D. Mass. Apr. 7,
2008)). “Typicality requires that the named plaintiffs' claims
arise from the same event or practice or course of conduct that
gives rise to the claims of other class members, and are based
on the same legal theory.” DaSilva v. Border Transfer of MA,
Inc., 296 F. Supp. 3d 389, 404 (D. Mass. 2017) (alterations and
quotation omitted).
Walker and Piskadlo are typical class members as to their
second theory of liability. The “course of conduct” from which
liability would arise is common to all class members — Osterman
requires all drivers to attend the same training and comply with
the same safety standards. If lunch breaks are compensable under
the Wage Act, Walker and Piskadlo have the same claim to recover
for deducted breaks as every other class member. The Court
concludes that typicality is met.
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i.

Adequacy

To satisfy Rule 23(a)(4), “[t]he moving party must show
first that the interests of the representative party will not
conflict with the interests of any of the class members, and
second, that counsel chosen by the representative party is
qualified, experienced and able to vigorously conduct the
proposed litigation.” Andrews v. Bechtel Power Corp., 780 F.2d
124, 130 (1st Cir. 1985).
Defendants contend Walker and Piskadlo are inadequate class
representatives because they hold grudges against their former
manager, Mike Smith, and because they committed timesheet fraud.
Neither argument is persuasive. “Only conflicts that are
fundamental to the suit and that go to the heart of the
litigation prevent a plaintiff from meeting the Rule 23(a)(4)
adequacy requirement.” Matamoros, 699 F.3d at 138 (quotation
omitted). Dissatisfaction with a former boss is not a
disqualifying conflict where there is no evidence it would
affect Plaintiffs’ claim regarding lunch breaks.
Neither is the purported “timesheet fraud” a disqualifying
conflict of interest. Plaintiffs admit they were sometimes
allowed to leave early during the off-season — but mark a full
day — to make up for unpaid overtime in the busy season. This
situation is a far cry from cases where the named plaintiffs had
felony fraud convictions. See Xianglin Shi v. Sina Corp., No. 05
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CIV. 2154 (NRB), 2005 WL 1561438, at *4 (S.D.N.Y. July 1, 2005)
(collecting cases).
Plaintiffs' attorneys are experienced in class-action
employment litigation and specifically wage and hour claims.
Defendants do not contest their qualifications. Both prongs of
Rule 23(a)(4)’s adequacy requirement are met.
ii.

Predominance

To succeed in their motion for class certification,
Plaintiffs must finally show that the proposed class meets the
predominance and superiority requirements of Rule 23(b)(3).
“[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.”
Mowbray, 208 F.3d at 298. “At the class certification stage, the
court must be satisfied that, prior to judgment, it will be
possible to establish a mechanism for distinguishing the injured
from the uninjured class members.” In re Nexium, 777 F.3d at 19.
The Court concludes that questions common to the class
predominate. Liability can be determined on a class-wide basis,
without resort to individualized inquiries. To prevail,
Plaintiffs will need to prove that the CETP training instructed
all drivers to comply with the alleged restrictions and that, as
a legal matter, those restrictions rendered lunch breaks

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“working time.” Both contentions will stand or fall as to all
class members.
Individualized damages questions would not “inevitably
overwhelm questions common to the class.” Comcast, 569 U.S. at
34. Under Plaintiffs’ theory, all lunch breaks would be
compensable under the Wage Act. Although individual questions
would remain regarding how many lunch breaks were deducted from
each driver, it would be feasible to calculate the number of
breaks deducted over the course of each driver’s employment
using Workday records. Because calculation of each driver’s
damages “will likely be mechanical,” individualized damages do
not defeat predominance. See Garcia, 98 F. Supp. 3d at 291.
iii.

Superiority

Finally, Rule 23(b)(3) requires that “a class action is
superior to other available methods for fairly and efficiently
adjudicating the controversy.” “A Rule 23(b)(3) class action is
particularly superior where class treatment can vindicate the
claims of ‘groups of people whose individual claims would be too
small to warrant litigation.’” Id. at 292 (quoting Smilow, 323
F.3d at 41).
The Court finds that a class action here is the superior
method for adjudicating this controversy. The Court does not
find any significant management issues in proceeding as a class
action, and the Court is not aware of any other pending related
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litigation. Furthermore, the Court finds that a class action
lawsuit would be a better option than multiple individual
actions, coordinated individual actions, consolidated individual
actions, test cases, or any of the other known options. In
particular, the class is composed of individual claims that
would likely be too small to warrant litigation.
The requirements of Rule 23(b)(3) are met.
ORDER
For the foregoing reasons, the Court ALLOWS Plaintiffs’
motion for class certification (Dkt. No. 112) only as to their
theory of liability that drivers are not fully relieved of workrelated duties during their lunch breaks. The Court certifies
the following class:
All current and former propane delivery drivers in
Massachusetts employed by Osterman Propane from February 4,
2014 through the present.
Plaintiffs’ counsel is APPOINTED as counsel for the Class.
A status conference will be held on November 4, 2019 at
10:00 am.

SO ORDERED.
/s/ PATTI B. SARIS
Hon. Patti B. Saris
Chief United States District Judge

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