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Vitali v. Reit Management & Research, LLC

Superior Court of Massachusetts, Suffolk, Business Litigation Session

March 2, 2016

Donna Vitali [1]
Reit Management & Research, LLC No. 133281


          Mitchell H. Kaplan, Justice of the Superior Court.

         The 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.

         In July 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.

         In 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." [2] 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 DENIED .


         The 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.[3] 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.

         RMR is 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.

         Vitali 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.[4]

         When 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 OT."

         RMR 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.

         Vitali 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 period.

         Vitali 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 Parcels stated:

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.

         Parcels forwarded the message to Juppe, and Juppe responded to Vitali as follows:

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.

         Thereafter, 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. Thanks.

         On Monday, March 22, 2010, Juppe sent Vitali the following e-mail message:

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.[5]

         Vitali 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 ...

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