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Margulies v. Tri-County Metropolitan Transportation District

United States District Court, Ninth Circuit

October 10, 2013

ALLEN MARGULIES et al., Plaintiffs,
v.
TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, Defendant.

OPINION AND ORDER

PAUL PAPAK, Magistrate Judge.

Plaintiffs, in their individual capacities and as class representatives, filed the instant action against defendant Tri-County Metropolitan Transportation District of Oregon ("TriMet"). Plaintiffs allege that TriMet engages in a pattern or practice of failing to pay its bus and train operators fur all compensable work in violation of the federal Fair Labor Standands Act ("FLSA") and Oregon law. Now before The court arc TriMet's "Motion for Partial Summary Judgment as to Overtime Claims" ("motion for partial summary judgment") (#30) and plaintiffs' "Motion for Approval of Hoffmann-La Roche Notice" Hoffmann-La Roche motion") (#15). For the reasons discussed below, TriMet's motion for partial summary judgment is granted and plaintiffs' Hoffmann-La Roche, motion is grunted in part and denied in part,

PROCEDURAL BACKGROUND

On June 17, 2013. plaintiffs filed their second amended complaint (#18), alleging violations of die FLSA and Oregon law, Specifically, plaintiffs allege that TriMet tails to pay bus and train operators for: "(1) non-commute travel time between disparate start and end points of operators' scheduled runs, (2) the differential between scheduled run times and actual run times, (3) pre-departure time, (4) mandatory meetings with supervisors, (5) mandatory medical examinations, and [(6)] any applicable overtime due for such compensable time." Second Amended Complaint, #18, ¶ 4.

On July 3, 2013, plaintiffs filed the Hoffmann-La Roche motion.[1] On July 22, 2013, TriMet filed a resistance (#26) to the Hoffmann-La Roche motion. On August 8. 2013, plaintiffs filed a reply (#36).

On July 25. 2013, TriMet fried the motion for partial summary judgment. On August 19, 2013, plaintiffs filed a resistance (#37) to the motion for partial summary judgment. On September 6, 2013, TriMet filed a reply (#39).[2]

On September 17, 2013, the court heard oral argument on plaintiffs' Hoffmann-La Roche motion and TriMet's motion foe partial summary judgment. At the conclusion of the healing, the parties stipulated to extend the time to supplement the record on the pending motions. On September 23, 2013, plaintiffs filed a corrected declaration of John Olsen (#43). On September 24, 2013, TriMet filed a supplemental memorandum in support of the motion for partial summary judgment (#45), as well as six additional declarations in support of the motion for partial summary judgment (#46 to #51). Plaintiffs' Hoffmann-La Roche motion and TriMet's motion for partial summary judgment are fully submitted and ready for decision.

FACTUAL BACKGROUND

A. Parties

"TriMet is a regional transit provider in the Portland metropolitan area, with a service area of approximately 570 square miles, and supplies its passengers with commuter rail service (WHS); bus service, and light rail service (MAX)." Declaration of Shelly Lomax ("Lomax Decl."), #32. ¶ 2. Named plaintiffs Allen Margulies. Stephen hung, and Christopher Day are currently or were formerly employed as bus operators for TriMet. Declaration of Allen Margulies ("Margulies Decl, "), #38, ¶ 2: Declaration of Stephen Fung ("Fung Decl."), 438, ¶ 2; Declaration of Claristopher Day ("Day Decl."), #38, ¶ 2. Named plaintiff John Olsen is employed as a train operator for TriMet.[3] Corrected Declaration of John Olsen ("Olsen Decl."), #43. ¶ 2.

B. TriMet's Services

TriMet employs 758 full-time bus operators and 319 part-time bus operators who provide service for TriMet's 79 bus lines. Lomax Decl., #32, ¶ 4; Ex. 1, Lomax Decl., #32-1, at 3. TriMet also employs 153 full-time MAX rail operators who provide service for TriMet's four light-rail lines. Lomax Decl., #32, ¶ 4; Ex. 1, Lomax Decl., #32-1, at 2.

"TriMet bus routes are in is grated with the MAX light rail system and make numerous connections throughout the district with various MAX stations and stops, including the Beaverton, Sunset, Rose Quarter, [and] Gateway Transit Centers, which then connect to the Portland International Airport." Lomax Decl., #32, ¶ 9. Pursuant to an agreement with the Port of Portland, TriMet is required to provide frequent light-rail service to (he Portland international Airport. Ex. 3, Declaration of Gregory E. Skillman ("Skillman Decl."), #33-3. at 6 Moreover, various buses and light-rail trains provide service to the Portland Greyhound Bus Station, the Portland AMTRAK Train Station, and the BOLT bus stop. Lomax Decl., #32, ¶¶ 10-11.

C. Washington-Oregon Commuters

Survey data suggests that a number of Washington residents commute to Oregon on a regular basis and that such commuters regularly use the TriMet system. For instance, a 2010 survey of people residing in Vancouver, Washington, and the surrounding communities found that 41% of respondents commute to Oregon on a weekly basis. Declaration of Drew Blevins, #46, ¶¶ 2-4. Of those respondents (hat commute to Oregon regularly, 15% ride a MAX light-rail train at leant one day a week and 9% ride a TriMet bus. at least one day a week, Id. ¶ 6.

Furthermore, license-plate purveys of TriMet's, "Park and Ride lots suggest that Washington residents regularly use TriMet services. Declaration of Young Park ("Park Decl."), #50, ¶ 5; see also Declaration of Jennifer Goodrich ("Goodrich Decl."). #48, ¶ 6 (noting that TriMet's Park and Ride lots are designated for transit users only). A 2006 license-plate survey found that 71.8% of vehicles parked at the Park and Ride lot at the Expo Center had Washington license plates; 76.2% of vehicles parked at the Park and Ride lot al Delia Park had Washington license plates; 26.4% of vehicles parked at the Park and Ride lot at the Gateway Transit Center had Washington license plates; and 77.5% of vehicles parked at the Park and "Ride lot at the Parkrose/Sumner Transit Center had Washington license plates. Park Decl., #50, ¶ 6. More recent surveys show that Washington residents continue to use TriMet's Park and Ride lots. For instance, a September 18, 2013 survey of the Park and Ride lot at the Parkrose/Sumner Transit Center found that, of the 165 vehicles parked in the lot, 117 had Washington license plates. Goodrich Decl., #48, ¶ 6. A September 20, 2013 survey of the Park and Ride lot at the Delta Park/Vanport Transit Center found that, of the 148 vehicles parked in the lot, 113 had Washington license plates. Declaration of Joanna Panza ("Panza Decl."), #49, ¶ 6.

D. C-TRAN Ticketing Agreement

On September 1, 1991, TriMet entered into an agreement with the Clark County Public Transportation Benefit Area Authority ("C-TRAN"), which provides transit services for Vancouver and the surrounding communities. Ex. 1, Declaration of Claire Potter ("Potter Decl, "), #41, at 1-8. Pursuant to the agreement. TriMet accepts certain types of C-TRAN tares on TriMet's system and C-TRAN accepts certain types of TriMet fares on C-TRAN's system, Id.; sue also Ex. 2. Lomax Decl., #32-2, at 1 (listing the types of C-THAN fares that are valid on TriMet). Under the agreement, "Vancouver. Washington area travelers holding a C-TRAN All-Zone or Express fare can ride anywhere in the TriMet. system." Lomay Decl., #32, ¶ 8. TriMet also agreed "to sell or provide space for C-TRAN to sell C-TRAN Adult passes to Clark County residents at its downtown customer service office" and also agreed "to provide an option in its employer-sponsored pass program for the sale of C-TRAN passes to Clark County residents." Ex. I, Toiler Decl., #41, at 2, The agreement further provides that C-TRAN shall pay TriMet fifty cents per pass sold by TriMet's personnel at the downtown customer-service office and "shall compensate [TriMet] for its net cost in providing service under [the] [a]greement." Id.

Until 2011, TriMet conducted annual surveys of bus and train passengers to determine how many passengers used C-TRAN fare and, thus, how much C-TRAN would pay TriMet under the agreement Second Declaration of Claire Potter ("Second Poller Decl, "), #47, ¶¶ 11. A Fall 2008 Rider Survey found that, on any given work day of (he week (Monday through Friday), TriMet could expect 10, 067 riders to use C-TRAN fares. Second Poller Deck, #47, ¶ 7, citing Ex. 2, Second Potter Decl., 047-1, at 1. A Fall 2009 survey found that, for any given week (including Saturdays and Sundays), TriMet could expect 38, 912 riders to use C-TRAN fares. Id. ¶ 8, citing Ex. 3. Second Potter Decl., #47-1, at 1. Of those bus and rail passengers surveyed in the Fall of 2009, 259 reported that they had transferred to or Horn a C-TRAN bus. Id ¶ 4.

"Due to the expense of conducting the TriMet Rider Survey it is no longer done annually, and TriMet and C-TRAN agreed in 2011 that TriMet's compensation would be based en one-half of the total revenue that C-TRAN collects from fares for its C-TRAN Express bus passes." Id. ¶ 11. Pursuant to this modified agreement, "C-TRAN paid TriMet $183, 333.36 in 2011, $202, 423.79 in 2012, and two payments totaling $135, 571.05 to date 2013, as compensation for the C-TRAN All-Zone passes honored by TriMet." Potter Decl., #41, ¶ 6: see also Ex. 2, Potter Decl., #41, at 1-5.

Although no longer required to determine its net cost under the C-TRAN ticketing agreement. TriMet still conducts periodic, although not annual. Rider Surveys "[f]or budget, planning and marketing purposes." Second Potter Decl., #47, ¶ 2. The most recent "Rider Survey was conducted in Fall 2012 and found hat, for any given week (including Saturdays and Sundays), TriMet could expect 11, 891 riders to use C-TRAN fares, Id. ¶ 9, citing Ex. 4, Second Potter Decl., #47-1, at 1. Of those bus and rail passengers surveyed in the Fall of 2012, 150 reported that they had transferred to or from a C-TRAN bus. Id ¶ 5.

In September 2013. TriMet conducted a number of limited surveys aboard several TRAN C-TRAN buses and at a Portland-area bus slop to determine the number of C-TRAN bus riders who trans for to TriMet buses or trains. See Goodrich Decl., #48; Panza Decl., #49. On September 18, 2013, Joanna Panza, a paralegal/investigator with TriMet's Legal Services Department, rode the C-TRAN #4 bus, with service from downtown Vancouver to Jantzen Beach in Portland. Panza Decl., #49, ¶¶ 1-2. Panya inter vie wed eight passengers aboard the C-TRAN #4 bus. Id. ¶ 2. Of the eight passengers, three intended to ride the C-TRAN #4 bus to a MAX light-rail station and ride the train to their final destination. Id. ¶ 3. Another three passengers intended to ride the C-TRAN #4 bus and then transfer to a TriMet bus to complete their trip. Id The remaining two passengers intended to ride the C-TRAN #4 bus to their final destination. Id. Of the eight passengers Panza interviewed, tour used C-TRAN passes, three used TriMet passes, and one used a transfer, Id. In addition to those passengers she interviewed, Panza observed three passengers exit the C-TRAN #4 bus at the Jantzen Beach stop in Portland and wait at a TriMet bus stop. Id.

Also on September 18, 2013, Panza rode the C-TRAN #4 bus from Vancouver to Delta Park in Portland. Id. ¶ 4. During her trip, Panza interviewed seven passengers. Id. Of those seven passengers, five intended to ride the C-TRAN #4 bus to a MAX light-rail station and ride the train to their final destination. Id. One passenger intended to ride the C-TRAL'I #4 bus and then transfer to a TriMet bus to complete his or her trip. Id. The remaining passenger intended to ride the C-TRAN #4 bus to his or her final destination. Id. Of the seven passengers Panza interviewed, five used C-TRAN passes and two used TriMet passes. Id. In addition to those passengers she interviewed, Panza observed three passengers exit the C-TRAN #4 bus at Jantzen Beach and board the TriMet #6 bus. Id.

On her return trip from Delta Park to Vancouver on the C-TRAN #4 bus, Panza interviewed another six passengers. Id. ¶ 5. Of those six passengers, two had taken a MAX light-rail train and then transferred to the C-TRAN #4 bus. Id. Four passengers had taken a TriMet bus, transferred to a MAX light-rail train, and then boarded the C-TRAN #4 bus. Id. Of the six passengers Panza interviewed, one used a C-TRAN pass, two used TriMet passes, and three used transfers. Id.

On September 20, 2013, Panza interviewed thirty-one individuals at the corner of SW 6th Street and SW Columbia Street in Portland. Id. ¶ 7. Of the thirty-one individuals she interviewed, fifteen were C-TRAN riders only, two were TriMet riders only, and fourteen had taken a TriMet bus and then transferred to a C-TRAN bus. Id. Twenty-four of the individuals were using C-TRAN passes, two were using TriMet passes, and five had Oregon Health and Science University employee badges that allowed them to ride both TriMet and C-TRAN. Id.

Jennifer Goodrich, a legal assistant with TriMet's Legal Services Department, also. conducted a series of surveys aboard C-TRAN buses. See Goodrich Decl., #48. On September 18, 2013, Goodrich interviewed fifteen passengers aboard the C-TRAN #65, with service from the Fisher's Landing Transit Center in Vancouver to the Parkrose/Sumner Transit Center in Portland. Id. ¶¶ 2-3. Of the fifteen passengers Goodrich interviewed, nine intended to continue their trip on a MAX light-rail train, five intended to continue their trip on a TriMet bus, and one passenger planned to ride the C-TRAN bus to his final destination. Id. ¶ 3. Twelve of the passengers used C-TRAN passes and indicated to Goodrich that they intended to use those passes to continue their trip in the TriMet system. Id. ¶ 4. Three of the passengers had TriMet passes. Id. At the Parkrose/Sumner Transit Center, Goodrich observed passengers exit the C-TRAN #65 bus and board TriMet buses. Id. ¶ 5.

Goodrich conducted another survey aboard the C-TRAN #164, which provides express service from the Fisher's Landing Transit Center in Vancouver to the TriMet transit mall on SW 5th Avenue in Portland. Id. ¶ 7. Of the thirty-seven passengers Goodrich interviewed, two intended to continue their trip on a TriMet bus using a transfer available from the C-TRAN bus operator and one passenger, who had a C-TRAN pass, intended to continue her trip on a MAX light-rail train. Id.

Despite the C-TRAN ticketing agreement, Plaintiff Margulies "never transported a passenger that used a C-TRAN fare media to ride [his] bus." Margulies Decl., #38, ¶ 7. Plaintiff Fung "transported a passenger that used a C-TRAN fare media about once a month." Fung Decl., #38, ¶ 7. Plaintiff Day "transported a passenger that used a C-TRAN fare media about once every two months." Day Decl., #38, ¶ 7 Plaintiff Olsen "transported a passenger that used a C-TRAN fare media about once every two weeks." Olsen Decl., #38, ¶ 7.

ANALYSIS

I. Motion for Partial Summary Judgment

In the motion for partial summary judgment, TriMet requests that the court grant summary judgment in TriMet's favor on the limited issue of whether TriMet's bus operators are exempt from the FLSA's overtime-pay provision. Specifically, TriMet argues that bus operators fall within the FLSA's motor-carrier exemption:[4]

A. Standard

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Summary judgment is not proper if material factual issues exist for trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). The substantive law governing a claim or defense determines whether a fact is material. See Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998). In evaluating a motion for summary judgment, the district courts of the United States must draw all reasonable inferences in favor of the nonmoving party and may neither make credibility determinations nor perform any weighing of the evidence. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55 (1990).

B. Discussion

1. Evidentiary ...


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