# Tilson v. Tri-County Metropolitan Transportation District of Oregon

> District Court, D. Oregon · March 16, 2020

URL: https://www.frixlaw.com/law-library/cases/10391755

## Case

- **Court:** District Court, D. Oregon
- **Decided:** March 16, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10391755. Public record. Not legal advice.