Tilson v. Tri-County Metropolitan Transportation District of Oregon

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DOUG TILSON and DIANNA WILLIAMS, Case No. 3:19-cv-108-SI

Plaintiffs, OPINION AND ORDER

v.

TRI-COUNTY METROPOLITAN

TRANSPORTATION DISTRICT OF

OREGON,

Defendant.

Andrew Altschul and Dana L. Sullivan, BUCHANAN ANGELI ALTSCHUL & SULLIVAN, LLP,

921 SW Washington Street, Suite 516, Portland, OR 97204; Steven G. Tidrick and Joel B.

Young, THE TIDRICK LAW FIRM, 1300 Clay Street, Suite 600, Oakland, CA 94612. Of Attorneys

for Plaintiffs.

Victor J. Kisch and John B. Dudrey, STOEL RIVES, LLP, 760 SW Ninth Avenue, Suite 3000,

Portland, OR 97205. Of Attorneys for Defendant.

Michael H. Simon, District Judge.

Doug Tilson and Dianna Williams (collectively, “Plaintiffs”) assert claims for violations

of the Fair Labor Standards Act (“FLSA”) against Tri-County Metropolitan Transportation

District of Oregon (“Tri-Met” or “Defendant”). Plaintiffs allege that Tri-Met failed to include

payments made to Plaintiffs under a “rail allowance” in calculating Plaintiffs’ “regular rate” for

purposes of determining Plaintiffs’ overtime compensation. Plaintiff Tilson also asserts a

derivative claim under Oregon Revised Statutes (“ORS”) § 652.140 relating to payment of wages

upon termination of employment, alleging that Tri-Met did not pay him all earned and unpaid

wages upon his retirement because Tri-Met excluded the rail allowance payments from his FLSA

overtime calculations before his retirement. The rail allowance relates to payments made by Tri-

Met to compensate rail operators during certain shifts that begin and end at different physical

locations, for the inconvenience caused by having differing shift start and stop locations. Tri-Met

moves for summary judgment on all claims, arguing that rail allowance payments are exempt

from the calculation of regular rates under the FLSA. Plaintiffs filed a cross-motion for summary

judgment. For the reasons that follow, Defendant’s motion is GRANTED and Plaintiffs’ motion

is DENIED.1

STANDARDS

A party is entitled to summary judgment if the “movant shows 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). The moving party has the burden of establishing the absence of a genuine

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view

the evidence in the light most favorable to the non-movant and draw all reasonable inferences in

the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th

Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling

on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of

the plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252,

1 The Court has determined that oral argument will not be helpful in resolving the

pending motions. See LR 7-1(d)(1).

255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for

the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

When parties file cross-motions for summary judgment, the court “evaluate[s] each

motion separately, giving the non-moving party in each instance the benefit of all reasonable

inferences.” A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006)

(quotation marks and citation omitted); see also Pintos v. Pac. Creditors Ass’n, 605 F.3d 665,

674 (9th Cir. 2010) (“Cross-motions for summary judgment are evaluated separately under [the]

same standard.”). In evaluating the motions, “the court must consider each party’s evidence,

regardless under which motion the evidence is offered.” Las Vegas Sands, LLC v. Nehme, 632

F.3d 526, 532 (9th Cir. 2011). “Where the non-moving party bears the burden of proof at trial,

the moving party need only prove that there is an absence of evidence to support the non-moving

party’s case.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Thereafter, the

non-moving party bears the burden of designating “specific facts demonstrating the existence of

genuine issues for trial.” Id. “This burden is not a light one.” Id. The Supreme Court directed that

in such a situation, the non-moving party must do more than raise a “metaphysical doubt” about

the material facts at issue. Matsushita, 475 U.S. at 586.

FACTUAL BACKGROUND

The parties agree to all relevant facts. They dispute only the legal consequences of those

facts. Accordingly, the parties filed their Stipulated Facts (ECF 17), from which this factual

background is derived.

Tri-Met operates a light rail system called the Metropolitan Area Express (“MAX”) that

serves the greater Portland metropolitan area. Stip. Facts ¶ 1. Tri-Met employed Plaintiff Tilson

as a MAX operator (or driver) from May 2001 until his retirement in October 2018. Id. ¶ 2. Tri-

Met employed Plaintiff Williams as a MAX operator from November 2014 through the present.

Id. ¶ 2.

Tri-Met assigns MAX operators to shifts called “runs” or “run listings.” Id. ¶ 5. All MAX

runs begin at a “start-shift” point, and end at an “end-shift” point, which are always either a

MAX station or a rail yard. Id. ¶ 6. MAX operators must be at the start-shift point at the

beginning of their shift and complete the assigned run at the end-shift point. Tri-Met, however,

does not impose any requirements about how a MAX operator commutes to or from the start-

shift and end-shift points. Id. In calculating pay for a MAX operator, Tri-Met does not consider

commute time as hours worked. Id. Tri-Met pays a MAX operator, on a non-exempt (i.e., hourly)

basis under Section 207 of the FLSA. Id. ¶ 3. Tri-Met pays a MAX operator from the time a run

is scheduled to begin until the time the run is scheduled to end, plus 15 minutes of pre-trip

preparation time and eight minutes of post-trip “clear” time for runs that begin or end at a rail

yard. Id. ¶ 5. If a MAX operator works more than 40 hours in a single work week, that operator

is entitled to an overtime payment calculated at one and one-half times (i.e., one hundred fifty

percent of) that operator’s regular rate of pay. Id. ¶ 3.

Some MAX runs begin and end at different locations. Id. ¶ 7. Starting and ending a run at

different locations may inconvenience a MAX operator because the operator may be required

either to travel back to the start shift location to retrieve a commute vehicle or find alternative

transportation home from the end-shift location. Id. MAX operators, including Plaintiffs, are

represented for purposes of collective bargaining by the Amalgamated Transit Union,

Division 757 (“ATU”). Id. ¶ 4. ATU and Tri-Met negotiated a rail allowance payment to

compensate MAX operators for the inconvenience of having to begin and end a run at different

locations. Id. ¶ 8.

The Wage and Working Agreement (“WWA”) is the current collective bargaining

agreement between ATU and Tri-Met. Article II, Section 9, Paragraph 10 of the WWA describes

the purpose of the “rail operation allowance” and further provides that this allowance is not to be

considered as pay for time worked for any purpose. It reads:

The purpose of the rail operation allowance represents

compensation for the inconvenience associated with the rail relief.

These payments shall not be considered pay for time worked for

any purpose. This applies to the unique circumstances pertaining to

the District’s rail system.

Id. The current WWA became effective on December 1, 2016 and continues through

November 30, 2019. Id. ¶ 4. This provision was the same in previous versions of the WWA,

dating back to at least December 1, 2003. ¶¶ 9-11. Tri-Met excluded these rail allowance

payments from Plaintiffs’ regular rate when calculating Plaintiffs’ overtime compensation. Thus

began the dispute that resulted in this lawsuit.

RELEVANT REGULATORY FRAMEWORK

The FLSA exempts from the definition of “regular rate” payments made for hours

understood not to be compensation for hours worked. The relevant text provides:

(e) “Regular rate” defined

As used in this section the “regular rate” at which an employee is

employed shall be deemed to include all remuneration for

employment paid to, or on behalf of, the employee, but shall not be

deemed to include—

* * *

(2) payments made for occasional periods when no work is

performed due to vacation, holiday, illness, failure of the employer

to provide sufficient work, or other similar cause; reasonable

payments for traveling expenses, or other expenses, incurred by an

employee in the furtherance of his employer's interests and

properly reimbursable by the employer; and other similar

payments to an employee which are not made as compensation for

his hours of employment[.]

29 U.S.C. § 207(e)(2) (emphasis added) (“§ 207” or “FLSA § 207 Exemption”).

The U.S. Department of Labor (“DOL”) has issued regulations interpreting the phrase

“other similar payments.” The relevant text provides:

Since a variety of miscellaneous payments are paid by an employer

to an employee under peculiar circumstances, it was not considered

feasible to attempt to list them. They must, however, be “similar”

in character to the payments specifically described in

section 7(e)(2). It is clear that the clause was not intended to permit

the exclusion from the regular rate of payments such as most

bonuses or the furnishing of facilities like board and lodging

which, though not directly attributable to any particular hours of

work are, nevertheless, clearly understood to be compensation for

services.

29 C.F.R. § 778.224(a) (“Similar Payments Regulation”).

The FLSA, as part of the Portal-to-Portal Act, defines certain non-compensable

“activities,” except when agreed-upon to be compensable by contract or custom. The relevant

text provides:

(a) Activities not compensable

Except as provided in subsection (b), no employer shall be subject

to any liability or punishment under the Fair Labor Standards Act

of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis

Act, on account of the failure of such employer to pay an employee

minimum wages, or to pay an employee overtime compensation,

for or on account of any of the following activities of such

employee engaged in on or after May 14, 1947—

(1) walking, riding, or traveling to and from the actual

place of performance of the principal activity or activities

which such employee is employed to perform, and

(2) activities which are preliminary to or postliminary to

said principal activity or activities,

which occur either prior to the time on any particular workday at

which such employee commences, or subsequent to the time on

any particular workday at which he ceases, such principal activity

or activities. For purposes of this subsection, the use of an

employer's vehicle for travel by an employee and activities

performed by an employee which are incidental to the use of such

vehicle for commuting shall not be considered part of the

employee's principal activities if the use of such vehicle for travel

is within the normal commuting area for the employer's business or

establishment and the use of the employer's vehicle is subject to an

agreement on the part of the employer and the employee or

representative of such employee.

(b) Compensability by contract or custom

Notwithstanding the provisions of subsection (a) which relieve an

employer from liability and punishment with respect to any

activity, the employer shall not be so relieved if such activity is

compensable by either—

(1) an express provision of a written or nonwritten contract

in effect, at the time of such activity, between such

employee, his agent, or collective-bargaining representative

and his employer; or

(2) a custom or practice in effect, at the time of such

activity, at the establishment or other place where such

employee is employed, covering such activity, not

inconsistent with a written or nonwritten contract, in effect

at the time of such activity, between such employee, his

agent, or collective-bargaining representative and his

employer.

29 U.S.C. § 254(a)-(b) (“§ 254”).

Finally, DOL regulations provide additional guidance relating to time spent in an activity,

including travel as described in § 254 and certain meal breaks, that may qualify under the

exemption contained in § 207(e)(2):

[I]n the case of time spent in an activity which would not be hours

worked under the Act if not compensated and would not become

hours worked under the Portal-to-Portal Act even if made

compensable by contract, custom, or practice, such time will not be

counted as hours worked unless agreement or established practice

indicates that the parties have treated the time as hours worked. . . .

Unless it appears from all the pertinent facts that the parties have

treated such activities as hours worked, payments for such time

will be regarded as qualifying for exclusion from the regular rate

under the provisions of section 7(e)(2), as explained in §§ 778.216

through 778.224.

29 C.F.R. 778.320(b) (“Activities Regulation”).

DISCUSSION

Tri-Met argues that the rail allowance is exempt from the regular rate calculation under

the FLSA § 207 Exemption as an “other similar payment[] to an employee [that is] not made as

compensation for his hours of employment.” 29 U.S.C. § 207(e)(2). Plaintiffs and Tri-Met

disagree over the interpretation of the rail allowance provision in the WWA and how the Court

should interpret whether the FLSA § 207 Exemption applies to exclude the rail allowance

payments from Plaintiffs’ regular rate. The parties also dispute which of the DOL-issued

regulations that interpret the FLSA best apply to the question of whether to include or exclude

rail allowance payments in or from the regular rate. Plaintiffs argue that the Court should analyze

the pending motions under the Similar Payments Regulation. Tri-Met argues that the Court

should look to the Activities Regulation. Finally, Plaintiffs’ argue that Tri-Met is judicially

estopped from disputing that a rail allowance payment is a bonus, and thus falls outside of the

statutory exemption. Tri-Met disagrees. These arguments are addressed in turn.

A. Legal Standards for Interpreting the FLSA

“The FLSA is construed liberally in favor of employees; exemptions ‘are to be narrowly

construed against the employers seeking to assert them. . . .’” Cleveland v. City of Los

Angeles, 420 F.3d 981, 988 (9th Cir. 2005) (quoting Arnold v. Ben Kanowsky, Inc., 361

U.S. 388, 392 (1960)). Employers bear the burden of establishing that they qualify for an FLSA

exemption, and courts will not find an FLSA exemption applicable “except [in contexts] plainly

and unmistakably within [the given exemption’s] terms and spirit.” Id. (quoting Klem v. City of

Santa Clara, 208 F.3d 1085, 1089 (9th Cir. 2000)).

B. Whether the FLSA § 207 Exemption Applies

Plaintiffs argue that the Court should analyze whether the FLSA § 207 Exemption applies

from the perspective of the Similar Payments Regulation. This regulation requires analyzing

whether claimed compensation is for “hours of employment,” 29 U.S.C. § 207(e)(2), or “is a

form of compensation for performing work.” Flores v. City of San Gabriel, 824 F.3d 890, 899

(9th Cir. 2016). Plaintiffs do not argue or present evidence that the rail relief is compensation for

performing work, but instead argue that Tri-Met fails to meet its burden of showing that the rail

allowance payments plainly and unmistakably fit within the FLSA § 207 Exemption. Plaintiffs

rely on Montana Public Employee’s Ass’n v. Montana Department of Transportation, 954

P.2d 21 (Mont. 1998), which held that an employer failed to show that similar payments were

exempt.

The Similar Payments Regulation specifically recognizes that employers may make

various payments to their employees that are not explicitly listed within the FLSA § 207

Exemption but nonetheless should be excluded from the employees’ regular rate calculation. 29

C.F.R. § 778.224(a) (“Since a variety of miscellaneous payments are paid by an employer to an

employee under peculiar circumstances, it was not considered feasible to attempt to list them.

They must, however, be ‘similar’ in character to the payments specifically described in

section 7(e)(2).”). The Ninth Circuit also “interpret[s] the ‘other similar payments’ clause to

focus on whether the character of the payment was compensation for work.” Flores v. City of

San Gabriel, 824 F.3d 890, 899 (9th Cir. 2016). The Ninth Circuit noted that “[u]nder

§ 778.224(a), a payment may not be excluded from the regular rate of pay pursuant to

§ 207(e)(2) if it is generally understood as compensation for work, even though the payment is

not directly tied to specific hours worked by an employee.” Id. at 898.

To evaluate the “character” of a rail allowance payment, or to determine whether it is

“generally understood as compensation for work,” id. at 898-99, the Court first looks to the

WWA. The WWA states, in relevant part: “The purpose of the rail operation allowance

represents compensation for the inconvenience associated with rail relief.” Stip. Facts ¶ 8

(emphasis added). The WWA further provides: “These payments shall not be considered as pay

for time worked for any purpose.” Id. (emphasis added).

As unambiguously stated in the WWA, a rail allowance payment compensates a MAX

operator for the inconvenience of starting and ending a shift at different locations. A rail

allowance payment is paid solely on this basis and does “not depend on hours worked, services

rendered, job performance, or other criteria that depend on the quality or quantity of the

employee’s work.” 29 C.F.R. § 778.224(a). For example, if two MAX operators are paid at the

same hourly rate, and one starts and ends her shift in the same location and the other starts and

ends her shift in two different locations, they each have performed the same job services. Under

Tri-Met’s current compensation system, however, they rightly receive the same compensation

for work performed and will each receive the same regular rate for purposes of overtime. The

operator who started and ended her shift in a different location, however, will also receive

pursuant to the WWA a rail allowance for any inconvenience that may have been caused by the

different start-shift and end-shift locations. That operator, however, did not perform any different

or greater job services, hours worked, or job performance. Thus, the rail allowance both

explicitly is identified in the WWA as not being remuneration or compensation for job

performance, and it also logically is not remuneration or compensation for work performed.

Providing that second operator with a higher regular rate for purposes of calculating any

overtime that also may be due simply because she started and ended her shift in different

locations but otherwise performed the identical job as the first operator does not seem either

logical or fair.

Plaintiffs, however, argue that the rail allowance is not similar in character to the types of

payments listed in the FLSA § 207 Exemption and thus may not be exempted. Plaintiffs assert

that the only qualifying payments must be similar to vacation, holiday, or sick time. Plaintiffs

ignore, however, both the DOL regulations and the Ninth Circuit’s guidance. First, the DOL has

explained that there are a “variety” of “peculiar circumstances” that feasibly could not be

listed. 29 C.F.R. § 778.224(a). Second, the DOL explained in the Activities Regulation that

payments such as paid meal breaks qualify under the FLSA § 207 Exemption. 29 C.F.R.

§ 778.320(b). Third, the Ninth Circuit has explained that the important analysis is the character

of the payment and whether it was generally understood to be a form of compensation for

performing work. Flores, 824 F.3d at 898. In Flores, the Ninth Circuit discussed the Third

Circuit’s analysis of “other similar payments.” The Ninth Circuit stated:

This reading, too, ultimately focuses on whether a given payment

is a form of compensation for an employee’s service or, like

vacation time and reimbursements, is instead a payment that would

not generally be considered compensation for an employee’s work.

Admittedly, the Third Circuit’s greater focus on a direct tie to

hours worked or services provided hews more closely to the

interpretation that the City urges here. We decline to adopt a

similar requirement. We observe, however, because the purpose of

the payments in Minizza was to secure the employees’ ratification

of a collective bargaining agreement, such payments are not

compensation for work performed, and would similarly be

excludable under our interpretation of § 207(e)(2).

Id. at 899. In Flores, the Ninth Circuit held that payments to ratify a collective bargaining

agreement qualified under the FLSA § 207 Exemption and thus necessarily had a similar

character to vacation, holiday, or sick time.

Paid meal breaks, vacation, holiday, sick time, paid time in which the employer did not

have enough work for the employee, and compensation paid to incentivize employees to ratify a

collective bargaining agreement are all examples that qualify for the FLSA § 207 Exemption

under the statute and its regulations and case law. Their common character is that they are not

compensation for work performed. Similarly, when Tri-Met pays a rail allowance payment to a

MAX operator for the inconvenience of rail relief, Tri-Met is not compensating that MAX

operator for work performed. Instead, Tri-Met has recognized, perhaps through the assistance of

negotiating with the ATU, that a MAX operator may suffer inconvenience from having to start

and end a shift at different locations. The parties, with the employees acting through the ATU,

negotiated the rail allowance payment as compensation but specifically agreed to exclude those

payments from the employees’ time worked “for any purpose.” Consequently, the rail allowance

payments are one of the “miscellaneous payments [that] are paid by an employer to an employee

under peculiar circumstances” that the DOL recognized would fall within the exemption.2 29

C.F.R. § 778.224(a). Because a rail allowance payment is not compensation for work performed

and is similar in character to the other payments listed in the FLSA § 207 Exemption, Tri-Met

2 Plaintiffs also argue that the Ninth Circuit in Flores noted that payments for

inconvenience are not excluded under the FLSA § 207 Exemption, but that is not what the Ninth

Circuit held. The Ninth Circuit discussed the Seventh Circuit’s holding in Reich v. Interstate

Brands Corp., 57 F.3d 574 (7th Cir. 1995), which held that when employees are paid extra for

working an inconvenient schedule, that is not exempted. Flores, 824 F.3d at 899. The discussion

quoted by Plaintiffs is from the Seventh Circuit, which the Ninth Circuit did not specifically

adopt, but noted was similar to the Ninth Circuit’s interpretation. The Ninth Circuit stated: “At

bottom, the Seventh Circuit’s reading of the statute is not so different from our own—both look

to whether the payment at issue is generally understood as compensation to the employee, not

whether the payment is tied to specific hours worked by the employee.” Id. Extra compensation

for hours worked in an inconvenient schedule is still compensation for hours worked. Extra

compensation for any inconvenience resulting from starting and ending a shift in different

locations is not compensation for hours worked.

properly excluded rail allowance payments from Plaintiffs’ regular rate calculation for overtime

purposes.

Plaintiff’s reliance on Montana Public Employee’s Ass’n is similarly unpersuasive. In

Montana Public Employee’s Ass’n, a labor union sued the Montana Department of

Transportation (“MDT”), alleging that MDT violated the FLSA by excluding the “District

Construction Allowance” from the regular rate of pay for MDT employees. 954 P.2d at 22. Some

job sites of MDT employees changed from time to time, requiring them to travel longer distances

from their home to their reporting station. Id. In a collective bargaining agreement, MDT agreed

to pay an allowance to compensate certain employees for the additional distances they must

occasionally travel from their home to their new reporting station. Id. The collective bargaining

agreement stated the allowance was intended “to accommodate special circumstances of

employees . . . who must report to different reporting stations.” Id. The court noted that the

“other similar payments” exemption was not intended to cover items such as bonuses and

provision of board and lodging that, “though not directly attributable to any particular hours of

work are, nevertheless, clearly understood to be compensation for services.” Id. at 26 (quoting 29

C.F.R. § 778.224(a) (1997)). The court concluded that MDT failed to show that the allowance

“plainly and unmistakably” fit within an FLSA statutory exemption and thus violated the FLSA

by not including the allowance in the employees’ regular rate. Id. The court, however, provided

no analysis for or explanation how the allowance was compensation was for work performed.

The Court does not find the analysis in Montana Public Employee’s Ass’n persuasive

with respect to the payments at issue being compensation for services or work performed.

Moreover, the facts in that case are distinguishable. The payments in Montana Public

Employee’s Ass’n were for having to report to various locations, which may involve a greater

commute to work. The rail allowance here, on the other hand, is simply for when the location of

the start-shift is different than the location of the end-shift. It does not involve the commute to

work. Additionally, the WWA, unlike the collective bargaining agreement at issue in Montana

Public Employee’s Ass’n, clearly and unequivocally states that the rail allowance is to

compensate for “inconvenience” from having to start and end one’s shift in different locations.

This is different than compensation to accommodate “special circumstances” for having to start

one’s shift at various locations, which is more ambiguous as to what the compensation covers.

For example, it is unclear what “special circumstances” means or whether the compensation

covers potential extra commute time. This ambiguity was held to be fatal under the standards for

review under the FLSA. Further, MDT and the labor union did not explicitly agree to exclude the

additional payments from an employee’s time worked for any purpose—as Plaintiffs and Tri-

Met agreed in the WWA. Thus, the character of the compensation and the agreement of the

parties as to what the compensation was intended to cover is more clearly defined in the WWA

than in the agreement at issue in Montana Public Employee’s Ass’n.

C. Judicial Estoppel

Plaintiffs also argue that Tri-Met is judicially estopped from arguing that the rail

allowance payments are not bonuses, which do not fall within the FLSA § 207 Exemption.

Plaintiffs rely heavily on the fact that Tri-Met once referred to the rail allowance payments as

“bonuses” in a brief filed in a different lawsuit, Margulies v. Tri-County Metropolitan

Transportation District of Oregon, Case No. 3:13-cv-0475-PK (D. Or. July 2, 2015) (“Margulies

Lawsuit”).

A district court has discretion whether to impose judicial estoppel. New Hampshire v.

Maine, 532 U.S. 742, 750 (2001). In considering whether to apply judicial estoppel, a district

court may consider several questions, including:

(1) Is the party’s later position “clearly inconsistent with its earlier

position?” (2) Did the party succeed in persuading a court to accept

its earlier position, creating a perception that the first or second

court was misled? and (3) Will the party seeking to assert an

inconsistent position “derive an unfair advantage or impose an

unfair detriment on the opposing party?”

Baughman v. Walt Disney World Co., 685 F.3d 1131, 1133 (9th Cir. 2012) (quoting New

Hampshire, 532 U.S. at 750-51). Further, this is not an exhaustive list of the factors that a court

may consider. New Hampshire, 532 U.S. at 751. For the reasons that follow, the Court declines

to preclude Tri-Met from arguing that the rail allowance payments are not bonuses and thus

excludable from Plaintiffs’ regular rate by the FLSA § 207 Exemption.

In the Margulies Lawsuit, bus and train operators argued that Tri-Met violated the FLSA

by not counting the time that operators spent traveling between their start-shift point and end-

shift point as compensable hours subject to overtime pay. Margulies v. Tri-Cty. Metro. Transp.

Dist. of Oregon, 2015 WL 4066654, at *2-3 (D. Or. July 2, 2015). In Tri-Met’s reply filed in

support of its motion for summary judgment, Tri-Met stated:

Obviously, the [rail allowance provision] does not provide for an

hourly payment for pre-shift or post-shift travel time. The Rail

Relief allowances contain no reference to time at all, and simply

reflect bonuses provided to operators who relieve other operators

at various locations. There is nothing in the text of this contractual

provision that pertains to an operator’s time spent travelling.

Marguelis Lawsuit, Case No. 3:13-cv-0475-PK, ECF 180 at 13 (filed March 23, 2015). Tri-Met

does not refer to the rail allowance payment as a bonus in any other part of its reply brief.

The Court has considered the New Hampshire factors. First, Tri-Met’s position in the

Margulies Lawsuit is somewhat inconsistent with its position in the present case, although not

“clearly” inconsistent. In Margulies, Tri-Met, on one occasion, loosely used the term “bonus”

when referring to rail allowance payments. The arguments raised and argued by Tri-Met,

however, were that:

plaintiffs’ alleged types of uncompensated time do not constitute

work time, because the time is considered commuting time, unpaid

waiting time, or “off-duty” time under the Portal to Portal Act,

FLSA regulations and caselaw, or because the time, in fact, is

compensated by TriMet under the WWA as a break of one hour or

less, or through a Time Slip completed by the operator in the event

of a mandatory meeting or late-arriving MAX train.

Marguelis Lawsuit, Case No. 3:13-cv-0475-PK, ECF 180 at 11 (filed March 23, 2015). The

focus of Tri-Met’s argument was not that the payments were bonuses.

In the pending action, Tri-Met argues that rail allowance payments are neither bonuses

nor compensation for work and thus are excludable from Plaintiffs’ regular rate. Although this

characterization is inconsistent with Tri-Met’s single reference in a previous brief filed in a

different lawsuit, considering the second and third New Hampshire factors, the characterization

did not mislead this Court or the court in the Margulies Lawsuit. The court in Marguilies did not

rest its holding on the fact that the payments were bonuses. Indeed, the court in its written

decision never used the term “bonus” at all. See 2015 WL 4066654. The fact that Tri-Met made

that single reference and is now arguing that the payments are not “bonuses” as that term of art is

used in the FLSA also will not impose an unfair detriment on Plaintiffs in the present action.

Tri-Met’s characterization did not bear on the ultimate issue in Margulies of whether the

operators’ start-end travel time was compensable work time under the FLSA. Tri-Met did not

refer to the rail allowance payments as bonuses again in its brief, and Magistrate Judge Papak did

not mention the word “bonus” in his written decision. Further, the word “bonus” is a term of art

under the FLSA. Whether a payment qualifies as a bonus under the FLSA is a legal question.

There was no substantive legal analysis in Margulies of whether a rail allowance payment should

be considered as a “bonus,” and Tri-Met’s characterization in Margulies does not cause any

unfair detriment to Plaintiffs in the pending action. The Court declines to use Tri-Met’s single

reference to “bonus” in Margulies to preclude Tri-Met from arguing here that a rail allowance

payment is not a bonus under the FLSA.

D. Summary

Both the unambiguous text of the WWA and the Stipulated Facts show clearly and

unmistakably that the rail allowance at issue in this case is an “other similar payment,” as that

term is used in the FLSA § 207 Exemption. Further, Tri-Met is not judicially estopped from

arguing otherwise. Because the Court can resolve the parties’ cross-motions for summary

judgment on this basis alone, the Court declines to address Tri-Met’s argument under the

Activities Regulation.

CONCLUSION

Tri-Met’s motion for summary judgment (ECF 18) is GRANTED, and Plaintiffs’ motion

for summary judgment (ECF 22) is DENIED. This action is dismissed.

IT IS SO ORDERED.

DATED this 16th day of March, 2020.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge