Ibner Casseus et al. 
Eastern Bus Company, Inc. et al.  No. 133797
MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR
J. CURRAN, Associate Justice.
Casseus and Lyonel Telfort, drivers for the Eastern Bus
Company, Inc., have sued that company and its owner and
president, Chuck Winitzer, for failure to pay overtime wages,
in violation of G.L.c. 151, § § 1A and 1B. In
addition, Mr. Telfort has sued for retaliatory termination in
violation of G.L.c. 151, § 19 and G.L.c. 149, §
case is before the court on the plaintiffs' and
defendants' cross motions for summary judgment, which
focus primarily on a single question of statutory
interpretation: whether the overtime exemption for employees
of an employer licensed and regulated as a charter
transportation service applies to the plaintiffs. The summary
judgment record contains no facts material to a prior session
judge's consideration of, and ruling on, this question of
law in this case. Therefore, that earlier determination must
stand: the overtime exemption does not apply, and the bus
driver plaintiffs are now entitled to summary judgment on
their claim for overtime wages. The defendants also seek
summary judgment as to Mr. Telfort's retaliation claim.
Because there are numerous disputes of material fact
regarding the defendants' stated reasons for Mr.
Telfort's termination, summary judgment must be denied.
Bus is a charter bus company that provides transportation
services to a variety of entities, including school districts
throughout Massachusetts. As such, it is required to, and
does, hold a charter services license under G.L.c. 159A.
Eastern Bus is employed by both municipal and private
entities in about equal measure; 43.3% of all charter jobs it
performed in 2015 were for non-municipal clients. Its work
for municipal clients includes contracts to transport
children to, and from, school in the mornings and evenings,
as well as to and from school-sponsored events such as field
trips and athletic competitions.
Casseus and Telfort, and other individuals employed as
drivers by Eastern Bus are assigned to drive routes that
Eastern Bus designates as either " school" or
" charter." School routes are those routes that
involve transporting students to and from school in the
mornings and evenings. All other routes are charter routes.
Eastern Bus pays its drivers one rate for school routes and
another for charter routes, but makes no distinction between
charter routes performed for municipal (school) clients and
the school year, drivers usually work between 25 and 40 hours
each week driving school routes. They may also exceed 40
hours a week driving only school routes, or as a result of
the combination of school routes and charter routes driven
for school clients. Eastern Bus pays no overtime wages to its
motion for summary judgment, it is the moving party's
burden to show that there is " no genuine issue of
material fact and that [it] is entitled to judgment as a
matter of law." Madsen v. Erwin, 395 Mass. 715,
719, 481 N.E.2d 1160 (1985). The moving party may meet this
burden " either through affirmative evidence or by
showing an absence of evidence to support an essential
element of the nonmoving party's claim." Dennis
v. Kaskel, 79 Mass.App.Ct. 736, 741, 950 N.E.2d 68
(2011), citing Flesner v. Technical Communications
Corp., 410 Mass. 805, 575 N.E.2d 1107 (1991). In
considering such a motion, courts must view the facts, and
the inferences that can reasonably be drawn from them, in the
light most favorable to the nonmoving party. Coveney v.
President & Trustees of the College of the Holy Cross,
388 Mass. 16, 17, 445 N.E.2d 136 (1983).
Failure to Pay Overtime Wages
General Laws c. 151, § 1A(11) provides employers must
pay overtime wages, unless the employee " is employed .
. . by an employer licensed and regulated pursuant to [G.L.c.
159A]." It is undisputed that for purposes of its
non-school-related charter work, Eastern Bus is licensed and
regulated under Chapter 159A, and is thus at least partially
exempt from the Chapter 151 overtime requirement. However,
earlier in this case, a prior session judge ruled that this
exemption does not cover Eastern Bus's " particular
employment of Plaintiffs to transport children to and from
school [and school-related events]" because that
activity " is neither conducted pursuant to, nor subject
to regulation by virtue of, [its chapter 159A] [c]harter
Bus now contends that because, as a company, it performs a
significant amount of charter work that is regulated
under Chapter 159A, any non-regulated (and thus non-exempt)
work performed by Mr. Casseus, Mr. Telfort, or similarly
situated employees is so minimal that they are not entitled
to overtime wages even for non-regulated, non-exempt work in
excess of 40 hours per week. It also revives its argument
that transport of children to and from school-related events,
under a contract with the school, is not " school"
work and should fall within the exemption. The former is
unpersuasive and is unsupported by Massachusetts case law;
the latter was already rejected by the prior session judge in
his Memorandum and Order on the defendants' motion to
court's previous holding was clear: the overtime
exemption for employers regulated under Chapter 159A is not a
blanket exemption that applies to all employees, whether or
not their actual work is related, or performed under the fact
of the employer's regulation. The summary judgment record
is also clear: Mr. Casseus, Mr. Telfort, and other drivers
employed by Eastern Bus performed, and did not receive
overtime wages for some amount of non-regulated, and thus
non-exempt, work in excess of 40 hours per work. They are
therefore entitled to payment for that work, and summary
judgment shall enter on their claim for violation of G.L.c.
151, § § 1A and 1B.