St. Pierre et al v. CVS Pharmacy, Inc. et al

Filing 133

District Judge Timothy S. Hillman: ORDER entered. MEMORANDUM OF DECISION. The Court finds in favor of the Plaintiffs on all claims.(Castles, Martin)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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Plaintiffs,
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v.
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CVS PHARMACY, INC.,
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MASSACHUSETTS CVS PHARMACY, )
LLC, MASSACHUSETTS CVS
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PHARMACY, INC., and CVS
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CAREMARK CORPORATION
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Defendants.
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____________________________________)
BARBARA ST. PIERRE and
LYNN GUILLOTTE

CIVIL ACTION
NO. 13-13202-TSH

MEMORANDUM OF DECISION
September 18, 2017
HILLMAN, D.J.
Introduction
In December 2016, this Court held a bench trial of Plaintiffs Barbara St. Pierre’s and
Lynn Guillotte’s jury-waived claims of violations of the Massachusetts Wage Act, the
Massachusetts Minimum Wage Law, and Breach of Contract. The Court now issues its findings
of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).
Findings of Facts
Based on trial testimony and admitted exhibits, I find as follows. Barbara St. Pierre and
Lynn Guillotte are former employees of the CVS-branded store located at 197 Boston Turnpike,
Shrewsbury, Massachusetts (Store No. 8). St. Pierre was employed at Store No. 8 from April
2011 – July 2015, and Guillotte from July 2001 – March 2013. Both St. Pierre and Guillotte
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were pharmacy technicians (“PTs”) – hourly employees responsible for production of
prescriptions, entering prescriptions into the system, and delivering customer service.

LEARNet Training Requirements
CVS Pharmacy requires all PTs, including St. Pierre and Guillotte, to regularly complete
mandatory training courses through LEARNet, an online “learning management system.”
LEARNet administers training courses covering a variety of topics from new computer systems
to changes in the law. LEARNet tracks the courses completed by each employee, including the
date and time at which training was completed, and in some instances, the dates and times of
failed attempts to complete training. LEARNet neither records the length of time taken to
complete a training activity, nor the incidence of training effort that did not result in an attempt
to complete a course. LEARNet is designed to allow users to complete trainings from any
location with internet access. There is no dispute that training conducted on the LEARNet
system is compensable time as a matter of law.

CVS Time and Compensation Policies
It is CVS policy that, as hourly employees, all PTs must record and report all time
worked, and must review and sign their time cards to verify that they have been paid for all hours
worked. It is also CVS policy that all PTs must be paid for time spent on LEARNet, whether
done at the store, or remotely. It is a violation of CVS policy for PTs to work “off-the-clock”
(i.e., uncompensated), or for anyone to instruct or encourage another employee to perform
uncompensated work. This policy is communicated to pharmacy and store managers through a
mandatory LEARNet training module, however, there was no equivalent training module for PTs

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regarding whether they were entitled to compensation for time spent on LEARNet training
outside of scheduled shifts, or how to be paid for such training. Instead, the CVS timekeeping
and payroll policies are conveyed to PTs via the employee handbook and the “policy portal.”
The version of the policy that the PT receives, “Policy on Timekeeping and Payroll Practices,”
which discusses time and compensation policies for “work,” does not expressly mention training
time or LEARNet, does not specify whether such time is compensable as “work,” and does not
indicate how an employee is to receive compensation for time spent on training outside of a
scheduled shift at the store. The CVS handbook specifies that an employee who is directed or
encouraged to incorrectly report their hours worked should report the incident to [his/her]
supervisor, Human Resource Business Partner, or the CVS Ethics Hotline.

Store Budget
Store No. 8 was provided with a budget for the total number of employee work hours for
the month. To stay within its assigned budget, the store had to limit the number of total hours
worked by PTs. Hours spent on LEARNet training were included in the budgeted hours,
whether done at or away from the store. Store No. 8 consistently used all, or nearly all, of its
budgeted hours every week for scheduled shift work, so that there were not sufficient hours
available to schedule off-shift training. Store No. 8 had a particularly busy pharmacy, and PTs
typically did not have time available to work on LEARNet during their scheduled shifts.

Reporting Time Spent on LEARNet
Pharmacy technicians are required to log into a Point-of-Sale (POS) system in the store at
the beginning of their shift, and logout at the end of a shift. If a PT does a LEARNet training

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module during their shift, they are paid for that time because they are already “on the clock.”
While it appears technologically plausible for CVS to electronically track time spent in
LEARNet and automatically enter that time into the payroll system, the system was not set up to
do so.1
The only way for a PT to be paid for hours spent on LEARNet training outside of Store
No. 8 was to report the time to their Lead PT, have the Lead PT enter it into the schedule, and
ensure that the store manager or shift supervisor entered those hours into the payroll system.
Only store managers (and not the pharmacy manager or Lead PT) can input the time into the
CVS payroll system. This was established through the testimony of pharmacy manager Chris
Moses and store manager Terry Shea-Gehlert. Chris Moses testified that a PT must report
LEARNet time done outside of a scheduled shift to their Lead PT, and that, as a pharmacy
manager, he would not be the person responsible for receiving that information from PTs or
ensuring that the time was compensated. If a PT were to report the time to him, he would tell the
Lead PT who would then report it to the shift supervisor, because all payroll was handled by the
“front store” only. Here “front store” means the CVS store within which the Pharmacy operates.
As pharmacy manager, he would not check to make sure that the hours were ever recorded.
Moses acknowledged that he was in charge of making sure mandatory training was completed,
but claimed that it was the store manager’s responsibility to make sure that the hours were
reported, recorded, and paid. Moses knew that St. Pierre was completing LEARNet training at

1

Testimony indicated that the electronic systems within the Pharmacy provide extremely
granular accounting of PT activity, including minute-to-minute accountability for handling
prescriptions and medicines. While the Court can envision that such accountability systems
could be used to provide timekeeping functions that might have assisted CVS in meeting their
obligations to pay for all hours worked, the Court in no way endorses the suggestion that a mere
technical possibility creates any obligation for CVS to do so.
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home, but never verified that she was paid for that time. Moses stated that this was the regular
way pharmacy managers operated.
Store manager Terry Shea-Gehlert testified that it was St. Pierre’s responsibility to report
mandatory LEARNet time, and the Lead PT’s responsibility to add that time to the schedule and
send it to Shea-Gehlert. At that point, Shea-Gehlert would enter the time into payroll. SheaGehlert knew that St. Pierre did at least some LEARNet training at home, but testified that it was
not her responsibility to follow up and make sure that St. Pierre was paid for the time. The Court
notes that there was a hierarchy of supervisory and managerial employees variously responsible
for scheduling work (including training), ensuring that training was completed, and managing
payroll and payroll budget. The most senior representative of CVS at Store No. 8, the Store
Manager, was both a) aware that at least one employee performed training outside their regular
shift, and b) was directly responsible for compensation by entering time into the payroll system.

CVS knew PTs completed LEARNet training outside of scheduled shifts
From a corporate standpoint, CVS knew that PTs completed mandatory trainings outside
of their schedule shifts, from home or another non-CVS location, and had designed the
LEARNet system with that purpose in mind. It was common enough that LEARNet training was
done outside of the store that CVS had a mandatory training module for managers covering the
topic to ensure PTs were paid for that time.
At Store No. 8, both store and pharmacy managers knew mandatory trainings on
LEARNet were done by employees outside of their scheduled shifts, from home or another nonCVS location. Both store and pharmacy managers instructed employees to complete LEARNet
training at home when there was insufficient time for the employee to complete the training

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during his/her shift at the store. On occasion, CVS required a course to be completed before a
PT could return to work for his/her next shift.
In addition to managers, Lead PTs instructed PTs to complete mandatory LEARNet
training at home when there was not enough time to complete training during their shift. Lead
PTs served as first line supervisors responsible for scheduling PTs’ shifts, assigning PTs to
particular stations or tasks in the pharmacy, overseeing the work they did, ensuring PTs
completed mandatory trainings, and adding PTs hours, including training hours worked off-shift,
to the schedule so they could be paid. Because CVS did not provide company email addresses to
PTs, Lead PTs also served as the primary point of communication for the PTs. St. Pierre
testified that she was specifically told to complete LEARNet training away from the store by
Lead PTs Christine Frederick and Angela Amoroso. Guillote also testified that she was
instructed to complete LEARNet training at home.

CVS knew that PTs were not being compensated for all LEARNet training time
St. Pierre testified that she was told on multiple occasions by pharmacy managers and
Lead PTs that she would not be paid for mandatory LEARNet training done outside the store.
She discussed the issue of compensation for time spent on training with Pharmacy Manager
Betsy Ingram and was told that she would not be paid for that time. On a later occasion,
Pharmacy Manager Leanne Languirand told St. Pierre that the mandatory training modules were
to be done on one’s own time, and were not compensated because the training was considered
“continuing education.” After informing Languirand that the Attorney General explained
training time was to be compensated, Languirand permitted St. Pierre to perform her LEARNet
training during her shift, but only for that day.

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Lead PT Christine Fredericks told St. Pierre that she would submit St. Pierre’s time sheet
for hours spent doing LEARNet training away from the store, but that CVS wouldn’t pay it, and
had refused to pay any of the other time submitted previously, including Fredericks’s own. As a
result of this exchange, St. Pierre declined to have Fredericks submit the time because she
believed that she wouldn’t be paid for it. I find that CVS pharmacy managers and Lead PTs
knew that St. Pierre was performing mandatory LEARNet training, and knew that this work was
uncompensated.
Guillotte also testified to being repeatedly told that LEARNet training done at home was
not compensable by Lead PTs and managers. Lead PT Angela Amoroso told Guillotte that she
would not include those training hours on the schedule because it would exceed the store’s
budget of PT hours. When Guillotte then approached Lead PT Christine Fredericks about being
paid for LEARNet training done at home, she was told that Amoroso was in charge of it. When
Guillotte notified her that she had already spoken to Amoroso, Fredericks told her that she had to
get it done one way or another. Thus, I find that in addition to senior and midlevel staff within
the staff hierarchy at Store No. 8, the most junior of the supervisory and managerial staff, the
Lead Pharmacy Technicians, were also a) aware that employees performed uncompensated work
outside their regular shift, and b) were responsible for compensation through their
responsibilities to both schedule and report non-shift work.
In addition to the Lead PTs, a store manager and pharmacy managers indicated that
Guillotte’s LEARNet training outside of the store would not be compensated. Pharmacy
Manager Susan Chavaries told Guillotte that LEARNet training was unpaid. When Guillotte
asked Pharmacy Manager Languirand about getting paid for time-consuming semi-annual
training on LEARNet, she was told that mandatory training would not be paid. Store Manager

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Terry Shea-Gehlert told her that LEARNet training was a job requirement that just needed to be
completed, and that it was unpaid.2 I credit Guillotte’s testimony, and find that the CVS store
and pharmacy managers, as well as Lead PTs, knew that Guillotte performed LEARNet training
off-the-clock and was not compensated for that work.
During their employment, both Plaintiffs made efforts to draw attention to the fact that
they were not compensated for hours worked, and there was widespread knowledge of the same
throughout the supervisory and managerial structure in place at Store No. 8. This was contrary
to CVS’s own policies on the matter, although the Plaintiffs only availed themselves of some of
the mechanisms offered by CVS’s employee handbook as a remedy.

The amount of uncompensated time
Every LEARNet training module has an estimated time for completion based on the total
number of words, and the time it took an employee to complete in a mock test in a laboratory
environment. St. Pierre and Guillotte testified that the trainings generally took 25% longer to
complete than the suggested time assigned by CVS, although it is not clear how they arrived at
these approximations other than general recall. CVS provided the LEARNet training transcripts
for St. Pierre and Guillotte, which were admitted as Trial Exhibits 18 and 22.3 CVS contends

2

Shea-Gehlert denied telling Guillotte that training was unpaid. I do not credit this portion of
Shea-Gehlert’s testimony.
3
Plaintiffs objected to these exhibits, and argued that they should be excluded as a sanction for
the Defendants’ spoliation of SiteMinder records. SiteMinder is a security application which
tracks logins to CVS systems, such as LEARNet, and captures some logouts. I declined to
exclude the records from evidence, but stated that I would make a negative inference in favor of
the plaintiffs, and presume that the spoliated SiteMinder records for St. Pierre and Guillotte were
supportive of the Plaintiffs’ case, and harmful to the Defendants’ case. See Docket No. 104.
Because the evidence was more than sufficient to sustain the Plaintiffs’ claims, I do not make
such an inference.
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that these transcripts are a complete and accurate list of all training courses engaged in by the
Plaintiffs. While both St. Pierre and Guillotte testified that they had no reason to doubt the
accuracy of the training transcript, I understood this to mean that they confirmed the accuracy of
the training recorded as completed, but not necessarily that the records were complete. The
training transcript captures all modules (mandatory or optional) an employee completed.
In addition, LEARNet captures the date and time that a user logs in, and some
information about the location of the login, but does not capture or record a logout, or how long
an employee takes to complete a training. LEARNet login records for St. Pierre and Guillotte
were admitted as Trial Exhibits 17 and 21. Plaintiffs allege that these exhibits are an incomplete
list of logins, and that SiteMinder records, which CVS destroyed, would have shown as much.
CVS had not compared any LEARNet logins with PT payroll because the records of
training completed, and the number of logins do not equate to working time. For example, an
employee can login to LEARNet, and then remain logged into the module for up to two hours
without being at the computer. Alternatively, in a scenario where an employee might login and
spend an hour or more trying to read and comprehend a training task in a less-than-ideal home
working environment (that might have taken 20 minutes under laboratory conditions), and then
returned to the task the following day to complete the task, the LEARNet system creates no
cognizable record of the work done.
St. Pierre testified that she completed 3-4 hours of LEARNet training per month, and that
75% of that was done on her own time, unpaid. At her deposition, St. Pierre initially estimated
the total number of unpaid training hours to be 40, however, later in her deposition she amended
the estimate. Both in her deposition, and at trial, she claimed she performed 120-140 hours of
unpaid LEARNet training during the course of her employment at Store No. 8. Because

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LEARNet only records completion or attempted completion of a training task, it does not
provide a useful estimate of the time worked on training off-shift. LEARNet does not provide
records of training started but not completed, and cannot address the issue of how long Plaintiffs
took to complete training tasks, or if they took longer to complete them at home than when they
were at work. Nor can LEARNet distinguish if certain employees routinely took longer to
complete training tasks. On reviewing the LEARNet records presented, I find that St. Pierre’s
approximations are not inconsistent with the records in LEARNet. Again, I find no evidence
other than the Plaintiffs’ testimony that permits meaningful clarification of these estimates which
are approximations based on memory and subject to the normative inconsistencies of human
recall. I therefore credit St. Pierre’s estimates with respect to her recollection of 3 to 4 hours
training per month, of which approximately three quarters of that time was completed outside her
regular shift, and find that the best estimate of the unpaid hours worked by St. Pierre is 2.63
hours per month.
Guillotte testified that she performed four to five trainings per month, and that about 80%
were done at home, with the average training taking about an hour. 4 Subject to the same
concerns and caveats with respect to the computer records noted above, on reviewing the
LEARNet records presented, I find that Guillotte’s approximations are somewhat inconsistent
with the records in LEARNet, in that her recollection of four-to-five trainings per month is
probably closer to the maximum than an average. There is evidence that Guillotte completed
that many trainings in some months, and it is not unreasonable that it is those months that stick in
Guillotte’s recollection. On the other hand, the record shows, and Guillotte has not disputed, that
in some months no tasks were completed at all. This creates a bar to simple averaging, as the

4

The parties stipulated to the plaintiffs’ hourly pay rates.
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record shows that training tasks were completed episodically in the context of Store No. 8
operating within a limited hours budget. This suggests a scenario where a requirement to
complete mandatory training tasks that themselves appear to be clustered in certain months
would inherently drive employees to more off-shift training in those months. However, I cannot
credit Guillotte’s estimate of 4-5 hours for every month in the light of the other evidence. As to
the proportion of training time expended in off-shift work and the length of time required per
task, I find no evidence other than Guillotte’s testimony that permits meaningful clarification of
these estimates which, like St Pierre’s recollections, are approximations based on recall. I
therefore credit Guillotte’s estimates with respect to her recollection of performing the bulk of
the tasks at home, and that the tasks took longer than the CVS estimate.
I do not accept Guillotte’s estimate for the average number of hours worked per month
which, on the basis of all the documentation submitted and consideration of the testimony heard,
appears too high. Considering all the evidence, I find the best estimate would be that which I
reached for St. Pierre. Because St. Pierre and Guillotte performed the same general duties in the
same store with similar training loads and work duties, St. Pierre’s credible estimate of 2.63
hours/month is the best basis on which to calculate the amounts due on Guillotte’s claim, and I
adopt that number here.

Discussion
Violation of Massachusetts Wage Act, Gen. Laws ch. 149 and ch. 151
The Massachusetts Wage Act mandates “[e]very person having employees in his service
shall pay…such employee the wages earned by him….” Mass. Gen. L. ch. 149 §148. In

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addition, “[e]very employer shall keep a true and accurate record of … the hours worked each
day and each week by each employee….” Mass. Gen. L. ch. 151, § 15.
The parties dispute the standard for liability under the Massachusetts Wage Laws. Citing
Vitali v. Reit Management & Research, LLC, 88 Mass. App. Ct. 99, 103-04, Defendants assert
that, to prevail on their claims, each Plaintiff must prove 1) that she performed unpaid work; 2)
that CVS had actual or constructive knowledge of the unpaid work; and 3) the number of hours
for which she has not been properly paid. Plaintiffs argue they are not required to prove that
CVS had actual or constructive knowledge that they were performing uncompensated work.
However, as I found that CVS knew that St. Pierre and Guillotte were working on mandatory
training via LEARNet outside of their scheduled shifts, and CVS knew that they were
performing this work uncompensated, the Plaintiffs prevail under either standard.5
Defendants point to numerous courts that have denied recovery for uncompensated work
in cases where the employee failed to identify the time worked using the employer’s timekeeping
systems because a supervisor would have no basis for knowing the number of hours the
employee worked unless the employee reported them. There is ample case law supporting the
principle that employers may place the burden on employees to report time that would not
otherwise be captured by the employer’s timekeeping systems. See, e.g., Norceide v. Cambridge
Health Alliance, 2014 U.S. Dist. LEXIS 22806, *9 (D. Mass. Feb. 24, 2014) (citing Frye v.
Baptist Mem. Hosp., Inc., 495 F. App’x 669, 673 (6th Cir. 2012)); Gordon v. Kaleida Health,
299 F.R.D. 380, 394 (W.D.N.Y. 2014). However, these cases are inapposite here, because St.
Pierre and Guillotte tried to use the employer’s timekeeping systems – they reported off-site

With respect to the Defendants’ argument that actual or constructive knowledge of the unpaid
work is required under Vitali, the court notes that Vitali doesn’t consider ch. 149, rather it
addresses ch. 151 § 1A, which concerns overtime pay.
5

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training time to their supervisors and managers at Store No. 8 – but were repeatedly told by their
supervisors and managers at Store No. 8 that time spent on mandatory training was not paid.
The Defendants’ suggestions that employees should have done more to try to get paid are
disingenuous, and neglect the imbalance of power in the employee/employer relationship that the
Wage Act and related statutes were intended to redress.
Defendants argue that mere access to training records that would show work was
performed doesn’t constitute “constructive knowledge” where supervisors don’t regularly review
the records, and those records weren’t used for payroll purposes. However, I do not impute
CVS’s knowledge solely from the LEARNet training records, but from actual knowledge of its
Lead PTs, pharmacy managers and store manager. Defendants’ argument that knowledge that
one employee was working uncompensated does not place it on notice that others were also
working uncompensated is likewise fatuous, because evidence on the record established that
CVS specifically knew that the two plaintiffs in this case, St. Pierre and Guillotte, were working
at home and not being compensated for that time.
Defendants cite Pforr v. Food Lion, Inc., 851 F.2d 106, 109 (4th Cir. 1988) and other outof-district cases for the proposition that an employer’s knowledge of certain instances of off-theclock work does not put it on notice of all unpaid work during the plaintiffs’ employment, and
thus St. Pierre and Guillotte must prove that CVS had knowledge of each instance of off-theclock work or prove an established pattern and practice of not paying for such work. The present
case, however, does not actually concern numerous discrete instances of off-the-clock work, but
rather a body of work of the same type carried out in the same manner as shown in the LEARNet
records and the broad language of the denials. Non-limiting but important examples of the
factors that link all the instances of unpaid work are the general requirement to complete

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training, the expectation and knowledge that the training would be done at home, and the general
indication that training completed at home was either unpaid due to a pervasive inability to
schedule such time due to hours budgeting/capping in Store No. 8, or simply unpaid as a matter
of Store No. 8 policy.
Defendants further argue that, for an employer to be imputed with knowledge of off-theclock work, the knowledge must be held by a staff member sufficiently senior to have
responsibility to control payment to staff. Defendants thus argue that knowledge by low-level
supervisors lacking such authority would be insufficient to establish actual or constructive
knowledge. See Hernandez v. City Wide Insulation of Madison, Inc., 2006 U.S. Dist. LEXIS
48399, at *10 (E.D. Wis. July 14, 2006); Dole v. Continental Cuisine, Inc., 751 F. Supp. 799,
802 (E.D. Ark. 1990); Pforr, 851 F.2d 106; Maciel v. City of L.A., 569 F.Supp. 2d 1038, 1048
(C.D. Cal. 2008); Thiebes v. Wal-Mart Stores, Inc., 2004 U.S. Dist. LEXIS 15263, at *13-14 (D.
Or. July 26 2004). However, the “low-level supervisors” to which the Defendants refer here – the
Lead PTs – were immediately responsible for enabling the payroll mechanisms to capture offshift work by adding PTs completed training hours to the schedule so that the PTs could be paid.
CVS asks me to parse this role from that of the store manager who actually completed payroll,
but as discussed above, there was no such ignorance on behalf of the store manager, thus
defeating the Defendants’ argument factually.

Breach of Contract
For the plaintiffs to prevail on their breach of contract claim, they must prove 1) the
existence of a valid contract; 2) that the defendant breached the contract; and 3) that the plaintiffs
suffered damages as a result of that breach. Wells Fargo Bank, N.A. v. Mistovich, 85 Mass. App.

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Ct. 1115 (2014). Defendants assert that Plaintiffs failed to establish the existence of a contract
with respect to the payment of training time. I disagree.
That CVS was the employer of plaintiffs is a stipulated fact that has never been a subject
of dispute in this case. See, e.g., Joint Stipulated Facts, Dkt. No. 110. “The plain and common
understanding of ‘employer’ is the entity with which an employee has an express or implied
contract to work for compensation and from which he receives pay.” Rogier v. Chambers, 2016
WL 5890024, at *4 (Mass. Super. Sept. 1, 2016) (emphasis added) (citing Black's Law
Dictionary (2009)). Moreover, CVS conceded that mandatory LEARNet training is
compensable “work”, and further, there is significant evidence on record to support this. See,
e.g., Tr. Exhibit 12 (CVS training module defining “work” to include “completing training
required by the company”). Thus, plaintiffs met their burden of proving the existence of at least
an at-will employment contract in which they would perform work for defendants, including
mandatory training, in exchange for wages. Plaintiffs further established at trial that they were
not paid for time worked in breach of that contract, and suffered damages by way of lost wages
as a result, and have thus met their burden with regard to their breach of contract claim.

Damages
Under Massachusetts law, it is an employer’s duty to maintain time records for its
employees. Mass Gen. L. ch. 151 § 15. In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,
66 S.Ct. 1187 (1946), superseded by statute on other grounds as recognized in Integrity Staffing
Solutions, Inc. v. Busk, ___ U.S. ___, 135 S.Ct. 513 (2014), the Supreme Court specifically
addressed the need to approximate damages when an employer has failed to keep complete
written records of compensable work performed such that “[t]he damage is …certain [while]

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….[t]he uncertainty lies only in the amount of damages arising from the statutory violation by
the employer.” Anderson, 328 U.S. at 688, 66 S.Ct. at 193.
Andersen articulates a two-part standard allowing employees to recover approximate
damages arising from unpaid wages “where the employer's records are inaccurate or inadequate
and the employee cannot offer convincing substitutes....” Id. at 687. An employee must prove 1)
that he “performed work for which he was improperly compensated,” and 2) produce “sufficient
evidence to show the amount and extent of that work as a matter of just and reasonable
inference.” Id. If an employer then fails to rebut with precise data, or otherwise negate the
reasonableness of the inference, a court can award damages, “even though the result be only
approximate.” Id. at 688.
While in Andersen the Court was considering claims under the FLSA, the principles
outlined are applicable to the parallel situation under the Massachusetts wage laws, as the
Court’s argument was based in preserving the benefit of the statute and the “great public policy
that it embodied,” while avoiding the “perversion of fundamental principles of justice” that
would occur were a court “to deny all relief to the injured person, and thereby relieve the
wrongdoer from making any amend for his acts.” Id. at 687-88 (citing Story Parchment Co. v.
Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 250 (1931)).
CVS did not maintain records of the plaintiffs’ off-site training hours, and contends that
this is only because plaintiffs failed to follow the CVS timekeeping policies requiring such hours
be submitted. However, having been told on more than one occasion by supervisors and
managers that mandatory training hours done off-shift were not compensable, Plaintiffs did not
submit their time spent working off-site, and did not keep written records of these hours. While
CVS produced LEARNet records for both plaintiffs in an attempt to establish a reasonable

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estimate of the time worked off-site, as discussed at length above, these records are not an
adequate representation of the time worked, and attempts to clarify the amount of work
associated with at least some of the LEARNnet events are frustrated as a result of the missing
SiteMinder records which might otherwise have provided some context within which LEARNet
events could have been interpreted.
In arriving at the estimate of 2.63 hours/month, I acknowledge that contemporaneous
written records would have provided a better basis for estimation, but the LEARNet records
provide the minimal factual basis required to show that uncompensated work was performed. I
then follow Andersen and bridge the gap to a quantitative approximation based on my reading of
the factual record and testimony in order to determine the extent to which Plaintiffs have (and
have not) established their claims as a matter of just and reasonable inference, while taking into
account argument by the Defendants that rebuts the Plaintiffs’ claims with precise data, or
otherwise undermines the reasonableness of their assertions.
I do not accept the Defendants’ assertion that timing developed by an operator in a
laboratory setting is relevant to every employee, or an employee attempting to work in the home
environment. Such studies cannot precisely measure the work actually performed and do not
undermine the reasonableness of the Plaintiffs’ approximations. Similarly, pointing to
inconsistencies in the Plaintiffs’ recollection and estimation of the number, duration, and location
of training tasks cuts little ice. These were obviously post hoc estimates, but they are the
approximations that I am left to work with because Store No. 8 failed in its statutory duty to
operate a system that allowed the Plaintiffs to record and be paid for the time that they worked.
I must also discard the Defendants’ underlying assumption that every task completed at
work was necessarily wholly undertaken at work (rather than off the clock). It is very hard to

17

Case 4:13-cv-13202-TSH Document 133 Filed 09/18/17 Page 18 of 23

accurately determine how long the Plaintiffs took to complete their training tasks due to the
functionality of the LEARNet system. Although the Defendants have offered alternate
approximations, these are not based in precise record keeping of the hours worked, and do not
undermine the reasonableness of the Plaintiffs’ claims that I have accepted. As the Defendants
acknowledge, their destruction of the SiteMinder records was unfortunate because, in the final
analysis, even if they allowed examination of only a few training events with actual start and
stop times, it might have provided an objective window into how much time employees were
logged on. I acknowledge that time on the system is an imperfect measure of work done
(perhaps employees stepped away from the computer, or alternately printed the material for
reading in hard-copy and logged off). Nevertheless, SiteMinder records could have been used to
corroborate or refute the subjective estimates that I have before me of the unpaid time spent on
the training system. Because I no longer have the ability to look at that information, I must
approximate the time based on the totality of the evidence, testimony, and the weight I attach to
the testimony.
For the reasons outlined above, St. Pierre is due compensation for 2.63 hours for each
month worked as a just and reasonable estimate of the unpaid time accrued based on the records
submitted and the testimony heard. Because St. Pierre left Store No. 8 by July 31, 2015, I find
that she is not due payment for uncompensated hours after July 2015. Otherwise, I generally
accept St. Pierre’s calculation of the amount due to her when adjusted to accommodate my
determination of 2.63 hours/month. As shown in the table below, St. Pierre is thus awarded
$903.30 in unpaid wages, which is subject to mandatory trebling under the Wage Act, bringing
her total damages award to $2,709.90. Mass Gen. L. ch. 149 §§ 148, 150.

18

Case 4:13-cv-13202-TSH Document 133 Filed 09/18/17 Page 19 of 23

I do not accept Guillotte’s estimate for the mean number of hours worked per month
which, on the basis of documentation submitted and testimony heard, appears high. Following
Andersen, I don’t wish to unduly penalize Guillotte for the failure of CVS’s record keeping, but
it would also be improper to credit that portion of her claim that does not appear reasonable.
However, as the fact finder I am still prompted by the considerations outlined in Andersen to sift
through the totality of the evidence to find an approximation that is just and reasonable. As St.
Pierre and Guillotte performed the same general duties in the same store with similar training
loads and work duties, I apply the same estimate of 2.63 hours/month as the best basis on which
we can approximate the amounts due to Guillotte’s claim, and I adopt that number
here. Accordingly, Guillotte is awarded $1,499.50 in unpaid wages, which after trebling brings
her total damages award on her Wage Act claim to $4,498.50.
Plaintiffs are also entitled to prejudgment interest on their Massachusetts wage law
claims, beginning on the date this action was commenced. Mass Gen. L. ch. 231 § 6H (“In any
action in which damages are awarded, but in which interest on said damages is not otherwise
provided by law, there shall be added by the clerk of court to the amount of damages interest
thereon at the rate [of twelve percent per annum] to be determined from the date of
commencement of the action even though such interest brings the amount of the verdict or
finding beyond the maximum liability imposed by law.”); George v. Nat’l Water Main Cleaning
Co., 477 Mass. 371, 372-73 (2017) (prejudgment interest “plainly could be added under G. L. c.
231, § 6H” for Wage Act claims). However, regarding the matter of prejudgment interest on the
amounts that are the result of trebling under the Massachusetts wage laws, prejudgment interest
does not apply to those amounts. George, 477 Mass. at 380-81 (“Prejudgment interest is still to
be added to the amount of lost wages and benefits, and is still not to be added to the trebled

19

Case 4:13-cv-13202-TSH Document 133 Filed 09/18/17 Page 20 of 23

portion of the judgment that previously had been punitive damages and is now characterized as
liquidated damages.”).
With respect to the months worked that predate the statute of limitations cutoff for the
Wage Act, the failure to pay for work performed constitutes an ordinary breach of the contract
between the employee and employer. As St. Pierre did not begin work at CVS until April 2011,
she is not entitled to damages for breach of contract. Guillotte is awarded damages for her
breach of contract claim, covering the period November 2007 until November 2010, in the
amount of $1,640.80. In addition, pre-judgement interest has accrued on the amount due during
that period. Mass. Gen. L. ch. 231, § 6C. (“In all actions based on contractual obligations, upon
a[n]… order for judgment for pecuniary damages, interest shall be added by the clerk of the
court to the amount of damages…at the rate of twelve per cent per annum from the date of the
breach or demand.”). Accordingly, Guillotte is entitled to prejudgment interest on damages for
her breach of contract claim beginning in November 2007, the earliest date of breach within the
statutory period.

20

Case 4:13-cv-13202-TSH Document 133 Filed 09/18/17 Page 21 of 23

Jul-11
Aug-11
Sep-11
Oct-11
Nov-11
Dec-11
Jan-12
Feb-12
Mar-12
Apr-12
May-12
Jun-12
Jul-12
Aug-12
Sep-12
Oct-12
Nov-12
Dec-12
Jan-13
Feb-13
Mar-13
Apr-13
May-13
Jun-13
Jul-13
Aug-13
Sep-13
Oct-13
Nov-13
Dec-13
Jan-14
Feb-14
Mar-14
Apr-14
May-14
Jun-14
Jul-14
Aug-14
Sep-14
Oct-14
Nov-14
Dec-14
Jan-15
Feb-15
Mar-15
Apr-15
May-15
Jun-15
Jul-15
Totals

2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63

12.24
12.24
12.24
12.24
12.24
12.24
12.24
12.24
12.48
12.48
12.48
12.48
12.48
12.48
12.48
12.48
12.48
12.48
12.48
12.48
12.48
12.48
12.48
12.73
12.73
12.73
12.73
12.73
12.73
12.73
12.73
12.73
12.73
12.73
12.73
12.73
12.73
12.73
12.73
12.73
12.73
12.73
12.73
12.73
12.73
12.73
12.73
12.73
12.73

32.1912
32.1912
32.1912
32.1912
32.1912
32.1912
32.1912
32.1912
32.8224
32.8224
32.8224
32.8224
32.8224
32.8224
32.8224
32.8224
32.8224
32.8224
32.8224
32.8224
32.8224
32.8224
32.8224
33.4799
33.4799
33.4799
33.4799
33.4799
33.4799
33.4799
33.4799
33.4799
33.4799
33.4799
33.4799
33.4799
33.4799
33.4799
33.4799
33.4799
33.4799
33.4799
33.4799
33.4799
33.4799
33.4799
33.4799
21
33.4799
33.4799
903.2998

no
fa
wa
rd
(

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St. Pierre

64.3824
64.3824
64.3824
64.3824
64.3824
64.3824
64.3824
64.3824
65.6448
65.6448
65.6448
65.6448
65.6448
65.6448
65.6448
65.6448
65.6448
65.6448
65.6448
65.6448
65.6448
65.6448
65.6448
66.9598
66.9598
66.9598
66.9598
66.9598
66.9598
66.9598
66.9598
66.9598
66.9598
66.9598
66.9598
66.9598
66.9598
66.9598
66.9598
66.9598
66.9598
66.9598
66.9598
66.9598
66.9598
66.9598
66.9598
66.9598
66.9598
1806.6

Case 4:13-cv-13202-TSH Document 133 Filed 09/18/17 Page 22 of 23

Nov-07
Dec-07
Jan-08
Feb-08
Mar-08
Apr-08
May-08
Jun-08
Jul-08
Aug-08
Sep-08
Oct-08
Nov-08
Dec-08
Jan-09
Feb-09
Mar-09
Apr-09
May-09
Jun-09
Jul-09
Aug-09
Sep-09
Oct-09
Nov-09
Dec-09
Jan-10
Feb-10
Mar-10
Apr-10
May-10
Jun-10
Jul-10
Aug-10
Sep-10
Oct-10
Nov-10
Dec-10
Jan-11
Feb-11
Mar-11
Apr-11
May-11
Jun-11
Jul-11
Aug-11
Sep-11
Oct-11
Nov-11
Dec-11
Jan-12
Feb-12
Mar-12
Apr-12
May-12
Jun-12
Jul-12
Aug-12
Sep-12
Oct-12
Nov-12
Dec-12
Jan-13
Feb-13
Mar-13
Apr-13
May-13
Totals

2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2.63

16.35
16.35
16.35
16.35
17.1
17.1
17.1
17.1
17.1
17.1
17.1
17.1
17.1
17.1
17.1
17.1
17.44
17.44
17.44
17.44
17.44
17.44
17.44
17.44
17.44
17.44
17.44
17.44
18
18
18
18
18
18
18
18
18
18
18
18
18.45
18.45
18.45
18.45
18.45
18.45
18.45
18.45
18.45
18.45
18.45
18.45
18.45
18.45
18.45
18.45
18.45
18.45
18.45
18.45
18.45
18.45
18.45
18.45
18.45
18.45
18.45

ea
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ce
(n
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xe

arn
ing
s

Guillotte

43.0005
43.0005
43.0005
43.0005
44.973
44.973
44.973
44.973
44.973
44.973
44.973
44.973
44.973
44.973
44.973
44.973
45.8672
45.8672
45.8672
45.8672
45.8672
45.8672
45.8672
45.8672
45.8672
45.8672
45.8672
45.8672
47.34
47.34
47.34
47.34
47.34
47.34
47.34
47.34
47.34
94.68 Triple Damage Period Commences
47.34
94.68
47.34
94.68
47.34
94.68
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
48.5235
97.047
3140.299 2998.989

22

Case 4:13-cv-13202-TSH Document 133 Filed 09/18/17 Page 23 of 23

Conclusion
For the reasons set forth above, the Court finds in favor of the Plaintiffs on all claims.
With respect to her Wage Act claim, Plaintiff St. Pierre is awarded $2,709.90, plus prejudgment
interest on $903.30 of that award, beginning on the commencement date of this action. Plaintiff
Guillotte is awarded $4,498.50 for her Wage Act claim, and $1,640.80 for her Breach of
Contract claim. Guillotte is entitled to prejudgment interest on the full $1,640.80 award for her
breach of contract claim, beginning in November 2007. She is entitled to prejudgment interest
on $1,499.50 of her $4,498.50 award for her Wage Act claim beginning on the date this action
was commenced.

SO ORDERED.

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
UNITED STATES DISTRICT JUDGE

23