Superior Court of Massachusetts, Suffolk, Business Litigation Session
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S
MOTION FOR CLASS CERTIFICATION
Mitchell H. Kaplan, Justice of the Superior Court.
plaintiff, Donna Vitali, on behalf of herself and all others
similarly situated, filed this action against the defendant,
Reit Management & Research LLC (RMR), asserting claims for:
violation of G.L.c. 151, § 1A (the statute governing pay
for overtime work--Count I); breach of contract (Count II);
and unjust enrichment/quantum meruit (Count III). Thereafter,
Vitali voluntarily dismissed Counts II and III.
2014, this court allowed RMR's motion for summary
judgment on the only remaining count and, therefore, did not
address her motion for class certification. Vitali v.
Reit Management & Research, LLC, 32 Mass. L. Rptr. 288
(Mass.Super.Ct. July 10, 2014) (Kaplan, J.). Vitali appealed,
and the Appeals Court reversed the grant of summary judgment
finding material disputed facts in the summary judgment
record sufficient to permit a jury to return a verdict in her
favor. See Vitali v. Reit Management & Research,
LLC, 88 Mass.App.Ct. 99, 111, 36 N.E.3d 64 (2015). The
Appeals Court expressed " no view" on the issue of
whether this case could properly be maintained as a class
action. Vitali v. Reit Management & Research, LLC,
88 Mass.App.Ct. at 112 n.24.
consequence, Vitali's motion for class certification
pursuant to Mass.R.Civ.P. 23 is now before the court. Vitali
requests that the court certify a class " consisting of
all current and former Reit employees who worked as an hourly
employee in Massachusetts at any time between February 2010
to November 2011."  After remand, the parties filed
additional memoranda in support of and opposition to this
motion, and, on February 2, 2016, the court convened a
hearing on the motion. For the reasons that follow,
Vitali's motion for class certification is
opinions previously issued by this court and the Appeals
Court set out the background facts. See Vitali v. Reit
Management & Research, LLC, 32 Mass. L. Rptr. at 288.
See also Vitali v. Reit Management & Research, LLC,
88 Mass.App.Ct. at 100-02. The court generally incorporates
those facts into this decision, without repeating all of
them. This decision will restate those facts necessary to
provide context to the pending motion, at times quoting
directly from this court's July 2014 decision, and
discuss additional evidence drawn from the summary
judgment/class certification record relevant to the question
of class certification.
a private company that primarily manages real estate held in
the portfolios of public companies. It has a principal place
of business in Newton, Massachusetts, as well as regional
offices in twenty other locations. It employs both
professionals and support staff. Vitali is a former at-will
employee of RMR. She worked in the accounts receivable
department of RMR's corporate office in Newton from March
1, 1999 until October 14, 2011; her job title was "
accounts receivable accountant." She worked with other
employees in an area in the Newton office in which each
employee had a short-walled cubicle. Vitali was an hourly
employee, compensated at a rate of $25.80 an hour in October
of 2011. Her assigned work hours were 9:00 a.m. to 5:00 p.m.,
five days a week. RMR provided its hourly employees,
including Vitali, with a paid one-hour meal break each
workday. In consequence, RMR paid her for forty hours of work
per week even though she was only required to "
physically work" (as RMR uses that term) for thirty-five
hours. According to Vitali, employees in her group took their
lunch when they could; there was no set schedule. This was
consistently RMR's policy since she started working at
the company in 1999.
attests that she frequently worked during lunch. According to
her, during " monthly closes, quarter closes, conference
calls for bad debt, audits . . . [or during periods of]
software conversion, " she was required to work during
lunch. Vitali estimates that from 1999 to 2011, she
consistently worked three to four times per week during
lunch. She avers that, " there was never a lack of work,
" and whether she worked three or four times a week
during lunch " depended on what came up and the
volume" of work. Vitali believes that the people who
brought work to her could verify that she typically worked
three or four times a week during lunch.
Vitali first started working at RMR, the company required
Vitali and other hourly employees to report their hours
worked on paper time sheets. The paper time sheets were
designed to cause employees to enter the following
information: time in for the day; time out for lunch; time
back from lunch; time out for the day; and any approved
overtime hours worked. The paper time sheets also allowed
employees to record their vacation, sick, and holiday hours.
On the bottom left-hand comer of each time sheet, immediately
above the employee's signature, was the following
statement: " [e]mployees may NOT work overtime without
advance approval from their supervisor" and " lunch
time are not hours physically worked in the computation of
installed an electronic time keeping system in February 2010
called " Kronos." In connection with the roll-out
of Kronos, RMR distributed a manual to employees with written
instructions regarding its use and an e-mail message dated
February 9, 2010. The manual included instructions and
sections entitled " Logging In, " " Updating
Time, " and " Viewing/Updating/Approving
Time." It informed employees that they should contact
Melissa Juppe or Mike Parcels in payroll with any issues.
Hourly corporate employees were instructed to log in when
they began work and log out when they finished at the end of
the day, but not to log out and back in at lunch. Unless they
took other steps, discussed below, in computing hours worked,
RMR management would assume that they took their paid
one-hour lunch break each day.
began submitting electronic time sheets through Kronos on
February 15, 2010. Vitali's Kronos time records for the
period February 15, 2010 through October 14, 2011 show that
she was compensated for fifteen hours of overtime during that
never entered any time in Kronos for work performed during
her one-hour paid lunch break. However, on March 15, 2010,
Vitali e-mailed the payroll department to notify them that
she had worked through lunch. The e-mail from Vitali to Mike
I was not able to take lunch today due to so much
Intercompany and meetings the rest of the week, so I
wasn't sure how I mark that on my time sheet/Kronos.
forwarded the message to Juppe, and Juppe responded to Vitali
Thank you for the heads up Donna. If your physically worked
hours for this week is over 40 hours we can discuss how the
lunch time for today should be recorded.
Vitali responded to Juppe:
Ok lady it was just for Monday 3/15/10 that I was not able to
take lunch. You can tell me Monday what I need to do I guess.
Monday, March 22, 2010, Juppe sent Vitali the following
Thank you for your e-mail. There is nothing you need to do
for this as your total hours for the week do not exceed 45.
The hours listed on the Kronos timecard will be paid at your
regular hourly rate.
forwarded this March 22, 2010 e-mail to her personal e-mail
account. This was the only occasion after Kronos was
implemented that Vitali notified payroll that she had worked
during her lunch hour. As discussed above, however, Vitali
maintained at her ...