United States District Court, D. Massachusetts
AYOBAMI YAYO, on behalf of himself and all others similarly situated
MUSEUM OF FINE ARTS and SANDRA MOOSE
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT and PLAINTIFF'S MOTION TO CERTIFY CLASS
RICHARD G. STEARNS, District Judge.
Plaintiff Ayobami Yayo alleges that defendants Museum of Fine Arts (MFA) and Sandra Moose, the President of the MFA Board of Trustees, failed to compensate him for a pay differential he earned by working latenight shifts as a Security Supervisor in violation of federal and state wage laws. He also alleges that defendants terminated his employment in retaliation for his assertion of an entitlement to the pay differential. Yayo moves to certify a collective action on the wage claims. Defendants move for partial summary judgment on the retaliation claim, the claims of putative opt-in plaintiffs Corey Tolbert and Gregory Collupy, and all claims against Moose.
The MFA is a nationally and internationally renowned art museum with an extensive collection of priceless paintings, sculptures, and artifacts. Its Department of Protective Services is responsible for the safety of the museum, its collection, and its visitors and staff. Defs.' Stmt. of Facts (DSOF) ¶ 9. Protective Services is headed by a Director, who at all relevant times was Craig McQuate. Id. ¶ 4. Reporting to the Director are a Deputy Director, five Security Managers, four Security Supervisors, and roughly one-hundred and thirty unionized Security Officers. See Luongo Decl. ¶¶ 4-7. The Director, Deputy Director, and the Security Managers are exempt, salaried employees. Id. ¶¶ 3-5. The Security Supervisors and Officers are non-exempt hourly employees. Id. ¶¶ 6 & 8.
In January of 2008, Yayo began working for the MFA as a part-time Security Officer. DSOF ¶¶ 3 & 12. In July of 2010, Yayo applied for and was promoted to the position of full-time Security Supervisor. Id. ¶ 13. His duties included supervision over approximately thirty Security Officers, and ensuring compliance with museum security policies and practices. Id. ¶ 15. In a typical week, Yayo worked from 4 p.m. to 11 p.m on Wednesdays, and from 9 a.m. to 5 p.m. on Thursdays, Fridays, Saturdays, and Sundays. Id. ¶ 14. When Yayo was asked to work additional hours, he was paid at timeand-a-half for hours over eight in a day, and in excess of forty over a week. See Tolbert Dep. at 79:5-16.
In the spring of 2012, Yayo noticed that the MFA's employee handbook stated a policy of paying non-exempt employees an additional 7% of shift wages for shifts beginning after 3 p.m. Yayo Dep. at 153:11-15. He asked Security Manager Jerome Higgins and Operations Manager Kelly Meighan about his entitlement to this pay differential. DSOF ¶ 73. Higgins and Meighan agreed with Yayo that, as a non-exempt employee, the pay differential policy should, on its face, apply to him. Yayo Dep. at 231:7-11. Yayo then approached McQuate with the same question. Id. 231:12-15. McQuate also did not know why Yayo was not paid the shift differential for his qualifying shifts and agreed to pursue the matter. Id. at 231:22-232:8. McQuate did not follow up with Yayo, and Yayo did not inquire about the shift differential again until September of 2012.
On August 29, 2012, Yayo worked the 4 p.m. to 11 p.m. shift as usual. DSOF ¶ 31. He invited two personal friends to visit him towards the end of his work day to fill out applications to work at the MFA and to give him a ride home afterwards. Id. ¶ 32; Yayo Dep. at 177:25-178:20. Yayo's friends arrived around 8 p.m. and entered the museum through the public entrance on Huntington Avenue. Yayo Dep. at 179:11-25. They met with Yayo at around 9:40 p.m., just before the museum closed. Id. at 180:5-8. He brought them down a back staircase to the Protective Services Suite, which was unoccupied at the time, and left them in the conference room while he finished his closing duties. DSOF ¶¶ 34-36. Yayo returned to the Protective Services Suite and joined his friends some twenty minutes later. Id. ¶ 37.
In early September of 2012, Yayo again raised the issue of the pay differential again with McQuate. Pl.'s Summ. J. Opp'n, Ex. A at MFA 285. McQuate again agreed to look into the matter. Id. Yayo then approached Lynn Hyams, a Human Resources (HR) Representative. See DSOF ¶¶ 78-79. Hyams referred the matter to Maureen O'Reilly, an HR Senior Manager. Id. ¶ 80. Sometimes in mid-September, O'Reilly informed Yayo that she was still pursuing his query, and would get back to him. Yayo Dep. at 238:19-239:19.
In late September of 2012, McQuate learned that Yayo had left personal friends unsupervised in the Protective Services Suite and began an investigation. DSOF ¶ 51. The Protective Services Suite contains the most confidential security equipment and files pertaining to the MFA, including computer systems, keys, cameras, surveillance equipment, museum schematics and diagrams, security codes and passwords, employee personnel files, and other restricted information. Id. ¶ 23. The Suite is not accessible to nearly all MFA staff, including Security Officers. Id. ¶¶ 21-22. McQuate concluded that Yayo had gravely compromised the security of the museum and had violated the MFA's Visitor Access Policy. See DSOF ¶¶ 38-43. McQuate informed Katherine Getchell, the Deputy Director of the museum responsible for Protective Services, and recommended that Yayo be disciplined with a Final Written Warning. Id. ¶¶ 53 & 57. Getchell disagreed with McQuate's recommendation - she responded that Yayo had committed a "terminable offense" -
We can't have a situation where command center has to spend time babysitting our own security management. There is no room for bad judgment in any case, security in particular. All of this reinforces that our biggest issue is with management - if we can't manage our managers, how do we expect our guards to behave? I support a 0% tolerance policy. We need to hold high standards and set examples.
Getchell Decl. Ex. B. Getchell, after consulting with McQuate and O'Reilly, ultimately decided to terminate Yayo. DSOF ¶¶ 58-60. Yayo's last day at the MFA was October 10, 2012. Id. ¶ 61.
Yayo filed this lawsuit in Suffolk Superior Court in April of 2013, on behalf of himself and all others similarly situated. Yayo asserts claims for non-payment of the differential wages for qualifying regular and overtime hours under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. (Count I), the Massachusetts Weekly Wage Act, Mass. Gen. Laws ch. 149, §§ 148 & 150, and the Massachusetts Minimum Fair Wage Law, Mass. Gen. Laws ch. 151, §§ 1A & 1B (Count II). Yayo also asserts a claim for retaliation in violation of 29 U.S.C. § 215(a)(3), and Mass. Gen. Laws ch. 149, § 148A (Count III). Defendants timely removed the lawsuit to this court on the basis of federal question jurisdiction. Discovery closed on April 14, 2014.
MOTION TO FACILATE § 216(b) NOTICE
The FLSA permits a plaintiff to maintain an action "for and in [sic] behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." 29 U.S.C. § 216(b). Although a collective action under § 216(b) provides similar advantages in efficiency as a class action under ...