United States District Court, D. Massachusetts
DAVID ROMULUS, CASSANDRA BEALE, NICHOLAS HARRIS, ASHLEY HILARIO, ROBERT BOURASSA, and ERICA MELLO, on behalf of themselves and all other persons similarly situated
CVS PHARMACY, INC.
MEMORANDUM OF DECISION
ZOBEL SENIOR UNITED STATES DISTRICT JUDGE
Cassandra Beale, Nicholas Harris, Ashley Hilario, Robert
Bourassa, and Erica Mello, former Shift Supervisors at CVS
Pharmacy, Inc. (“CVS”), allege that they were
required to remain in the store during their meal breaks when
no other managerial employees were present and that they were
not paid for this time. Based on these allegations, they
claim CVS violated the Massachusetts Wage Act, Mass. Gen.
Laws, ch. 149, § 148, and the Massachusetts overtime
statute, Mass. Gen. Laws, ch.151, §§ 1A & 1B.
In the instant motion, plaintiffs seek certification under
Federal Rule of Civil Procedure 23(b)(3) of the following two
(1) All CVS Shift Supervisors who worked for an hourly wage
in Massachusetts between July 25, 2008 and May 14, 2013 and
were not paid for meal breaks during which CVS required them
to remain in the store, for recovery of wages for unpaid meal
breaks during that period (the “First Class”);
(2) All CVS Shift Supervisors who worked for an hourly wage
in Massachusetts between May 15, 2013 and the date of final
judgment and who were not paid for meal breaks during which
CVS required them to remain in the store, for recovery of
wages for unpaid meal breaks during that period (the
“Second Class, ” or together with the First
Class, the “Classes”)
Docket # 115, at 1.
procedural history of this case is detailed in the First
Circuit's decision, Romulus v. CVS Pharmacy,
Inc., 770 F.3d 67, 70-72 (1st Cir. 2014). As relevant
here, named plaintiffs Beale, Harris, Hilario, Bourassa, and
Mello each worked as Shift Supervisors for defendant CVS
Pharmacy, Inc. (“CVS”), in Massachusetts. Beale,
Harris, Hilario, and Bourassa were employed by CVS at various
times prior to 2013; Mello was employed between approximately
September 2013 and November 2014.
their complaint, plaintiffs allege that CVS required Shift
Supervisors and Assistant Managers to remain in the store
during their rest or meal breaks “when there were no
other managerial employees on duty and/or when there was only
one other employee on duty.” Docket # 75, at ¶ 2.
They allege that during this time, they were not only
required to stay in the store but were also interrupted to
handle transactions when necessary. Nonetheless, plaintiffs
allege, they were required to punch out during these breaks
and were not paid for their time.
maintain that the combination of two CVS policies led to
their unpaid work during breaks: first, in that until at
least May 2013,  CVS's “management coverage
policy” prohibited Shift Supervisors from leaving store
premises when no other “managerial employees” -
Shift Supervisors, Managers, and Assistant Managers - were
present; and second, in that under the “unpaid meal
break” policy meal breaks must be unpaid. See
Docket # 16, at 7.
obtain class certification, plaintiffs must first meet Rule
23(a)'s prerequisites: (1) that the class be so numerous
such that “joinder of all members is
impracticable”; (2) that common questions of law or
fact exist; (3) that the representative parties' claims
or defenses are typical of those of the class; and (4) that
“the representative parties will fairly and adequately
protect the interests of the class.” Fed.R.Civ.P.
23(a). For class certification under Rule 23(b)(3), the court
must find (1) “that the questions of law or fact common
to class members predominate over any questions affecting
only individual members”; and (2) “that a class
action is superior to other available methods for fairly and
efficiently adjudicating the controversy.” Id.
23(b)(3). Plaintiffs must make an initial showing, by a
preponderance of evidence, “that a proposed class
satisfies the Rule 23 requirements.” In re Nexium
Antitrust Litig., 777 F.3d 9, 27 (1st Cir. 2015).
“Once plaintiffs have made their initial showing,
defendants have the burden of producing sufficient evidence
to rebut the plaintiff's showing.” Id.
district court must conduct a rigorous analysis of the
prerequisites established by Rule 23 before certifying a
class.” Smilow v. Sw. Bell Mobile Sys., Inc.,
323 F.3d 32, 38 (1st Cir. 2003). “Such an analysis will
frequently entail ‘overlap with the merits of the
plaintiff's underlying claim.' . . . That is so
because the ‘class determination generally involves
considerations that are enmeshed in the factual and legal
issues comprising the plaintiff's cause of
action.'” Comcast Corp. v. Behrend, 133
S.Ct. 1426, 1432 (2013) (quoting Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 351 (2011)).
parties' first point of contention is whether the
proposed classes are ascertainable. Although not found
explicitly in Rule 23, ascertainability is an “implied
requirement” and “essentially require[s] a
putative class to be ascertainable with reference to
objective criteria.” William B. Rubenstein, Newberg
on Class Actions §§ 3:1 (5th ed. 2017);
see also Nexium, 777 F.3d at 19 (citing and quoting
Rubenstein); Matamoros v. Starbucks Corp., 699 F.3d