MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In October 2011, Juan R. Prudencio brought this action alleging, among other claims, that his former employer, Mechanical Insulation Design & Construction (MIDCO), and its president and owner, Fred (John) Barker (collectively, the defendants), violated the Wage Act, G. L. c. 149, §§ 148, 150, by failing to pay Prudencio for the time he was required to be present at a worksite prior to the commencement of his regular work day.
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As we discuss in more detail later, Prudencios operative complaint was filed on behalf of himself and other similarly situated employees. However, his motion for class certification was denied, and he proceeded to trial with one additional employee, William Dowdy, who was joined as a plaintiff during the course of the proceedings. In response to special questions, the jury found that the plaintiffs had not proven their Wage Act claims, returning a verdict in favor of the defendants.
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The trial judge subsequently denied the plaintiffs’ motion for judgment notwithstanding the verdict (judgment n.o.v.), or in the alternative, for a new trial. This appeal, brought by Prudencio only, followed.
On appeal, Prudencio argues that his motions for class certification, directed verdict, and for judgment n.o.v. or new trial, were improperly denied, and that he is entitled to a new trial because the judge made numerous erroneous evidentiary rulings, improperly instructed the jury, and acted disrespectfully toward him and his attorney. We affirm.
1. Background. The jury were presented with the following evidence at trial. MIDCO provides insulation services for new construction and existing buildings. Prudencio worked intermittently for MIDCO as a field installer between April 2008 and June 2011.
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Throughout his employment, Prudencio was paid $22 per hour. When he worked overtime, Prudencio was paid $33 per hour. The primary dispute between Prudencio and the defendants stemmed from a provision contained in MIDCOs personnel policies and procedures manual (manual) that states, “All field personnel are required to report to job site at least 10 minutes before scheduled start time to prepare for work.” The parties referred to this requirement as the “ten minute rule.” Prudencio claimed that he complied with the rule and was not paid for the additional ten minutes he was at jobsites before the beginning of his scheduled shift. However, there was substantial evidence from which the jury reasonably could have concluded that the ten minute rule was not followed by MIDCO employees, including by Prudencio, and was not enforced by MIDCOs supervisors.
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In addition, there was no dispute that employees, including Prudencio, arrived at jobsites at various times even though the manual specified that the work day for field personnel commenced at 7 a.m.
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The employees also were permitted to work through the unpaid thirty minute lunch break and leave one half hour early.
Prudencio himself testified that he often worked from 6 a.m. to 2 p.m., and that his hours varied. A supervisor, Edward Stack, testified that “typically” employees who started at 6 a.m. and worked through lunch began cleaning up their work areas between 1:30 p.m. and 1:45 p.m., finished cleaning around 1:45 p.m. to 1:50 p.m., and then left for the day. Roger Farrell, a foreman, testified that Prudencio frequently left earlier than 2 p.m., sometimes around 1 p.m. or 1:30 p.m.
During the time Prudencio worked for MIDCO, employees reported the hours they worked on an honor system. Field employees reported their time and job locations to Barker on a weekly basis, generally by telephone on Monday afternoons.
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Prudencios supervisors instructed him and other employees to report “[w]hatever hours they work[ed]” and all the hours they were onsite. One employee testified that if he arrived at a jobsite early, and was permitted to enter early to set up, he was paid for that time.
Barker paid the employees for all the time they reported to him. Barker expected the employees to report all the time they were at the jobsites accurately and he rarely questioned the number of hours the employees claimed to have worked. According to Barker, the employees knew that he tolerated the padding of hours to a degree. Barker further asserted that, assuming that the employees actually started to work ten minutes before the start of their scheduled shifts, he never told anyone not to report that time. Prudencio never questioned the accuracy of the wages he received and never complained that he was owed wages. Prudencio admitted that he was paid for all the hours he reported, and although he acknowledged that he was never told not to report the extra ten minutes he allegedly worked, he claimed that he did not do so because he understood that he would not be paid for it.
2. Discussion. a. Motion for class certification. Early in the proceedings, Prudencios motion for class certification was denied by a judge of the Superior Court, who was not the trial judge, on the ground that Prudencio failed to establish that the proposed class would be sufficiently numerous to make joinder of all parties impracticable.
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See Mass. R. Civ. P. 23 (a) (1), as amended, 471 Mass. 1491 (2015). Prudencio was, however, given leave to join additional plaintiffs by way of an amended complaint, and he did so.
“The decision to grant or deny class status under rule 23 is within the broad discretion of the motion judge.” Weld v. Glaxo Wellcome Inc., 434 Mass. 81, 84-85 (2001). Prudencio argues that the judge erred because she reached her conclusion based “solely on the number” of potential class members, here potentially fifty-seven, and failed to adequately consider that the dollar amount that each employee could recover was likely to be too low for individual lawsuits brought by employees to be practicable. Prudencio further argues that the judge failed to consider evidence that the employees had reason to fear retaliation if they joined the lawsuit individually.
We are not persuaded that an abuse of discretion occurred. To begin with, as the defendants note, Prudencio was given the names and addresses of all potential class members (the total number of field installers employed by MIDCO between 2008 and 2011). In addition, contrary to Prudencios assertion, the judge recognized the problem posed by “small recoveries,” Gammella v. P.F. Changs China Bistro, Inc., 482 Mass. 1, 12-13 (2019), and granted Prudencios alternative request for permission to add plaintiffs with common questions of law and fact to the litigation. The motion judge also considered evidence of potential retaliation on the part of the defendants and denied their motion to strike a transcript of an angry voicemail left by Barker for Prudencio regarding the lawsuit on the ground that it was relevant to the class certification analysis.
Gammella, 482 Mass. 1, on which Prudencio relies, does not compel a different result. In that case, which was decided nearly six years after the ruling in question, the court held that the numerosity requirement was satisfied where the employer had significant record keeping deficiencies and refused to provide the identities of hundreds of unnamed employees. Id. at 11-12. Here, by contrast, the defendants provided their records to Prudencios attorney and identified all potential class members.
b. Motions for directed verdict and judgment n.o.v.
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Prudencio argues that he was entitled to the entry of a judgment in his favor for two reasons. First, he argues that he was entitled to a directed verdict because the pleadings and the evidence established the elements of his Wage Act claim as a matter of law. Second, he argues that the defendants failed to meet their burden of proving their affirmative defense, which was that MIDCO paid Prudencio for other time for which he was not entitled to wages and the amount of these payments was equal to or greater than the wages owed for complying with the ten minute rule. The defendants argued that even if Prudencio had worked an additional ten minutes before each shift and had not reported it, they had fully compensated Prudencio because he often left more than ten minutes early.
The motions were properly denied. As to Prudencios first argument, “[w]hen a party has the burden of proof, it can rarely be ruled as matter of law that the burden has been sustained, especially when the burden-carrying party has relied upon oral testimony or inferences from circumstances. ․ It is only in exceptional situations -- where the parties agree on all material facts and the reasonable inferences to be drawn therefrom and disagree only as to the legal effect of the controlling principles, or where the defendants own binding testimony precludes a verdict in his favor -- that the burden-carrying party may obtain a directed verdict.” Brunelle v. W.E. Aubuchon Co., 60 Mass. App. Ct. 626, 630-631 (2004). This case presents no exceptional circumstances. On the evidence presented, the jury could reasonably conclude that even if Prudencio arrived to work early, the question whether he was required to do so or to begin work -- or did work -- ten minutes before the start of his shift was in doubt. The jury could also have found that Barker never told Prudencio not to report the extra ten minutes on the days that he did arrive early. In addition, we are not persuaded, as Prudencio asserts, that the pleadings or Barkers testimony could fairly be interpreted as an admission that the ten minute rule was enforced and that employees were not paid for that time. The “admissions” in the pleadings to which Prudencio points merely consist of acknowledgements that the manual “speaks for itself.” As regards Barkers alleged admissions, Prudencio relies primarily on Barkers testimony in which Barker acknowledged that Prudencio always arrived at the jobsite early, but ignores the absence of any acknowledgment by Barker that Prudencio actually started to work before the scheduled start time.
Prudencios second argument fails for the reasons articulated by the trial judge when he denied Prudencios motion. As the judge explained, it matters not whether the defendants met the burden of proving an affirmative defense unless and until the jury found that they had violated the Wage Act. Put another way, the affirmative defense was not a relevant consideration for the jury unless it first found by a preponderance of the evidence that the defendants had violated the Wage Act. Accordingly, Prudencio was not entitled to a directed verdict or judgment n.o.v. on this ground.
c. Remaining claims in support of a new trial. 1. Evidentiary rulings. Prudencio asserts error in several evidentiary rulings made by the judge. Specifically, he claims that the judge erred in admitting evidence that MIDCO (1) is a small business, (2) provided various benefits to its employees, (3) loaned money to Dowdy, and (4) permitted other employees to work through lunch and leave early. Prudencio argues that this evidence was not relevant and was prejudicial to his case because it portrayed MIDCO as a benevolent employer and evoked sympathy from the jury. At the same time, Prudencio argues, the judge erroneously excluded evidence that benefitted him, including evidence regarding MIDCOs actual revenue and alleged failure to maintain accurate business records as required under the Wage Act. Prudencio further asserts that the judge erred by permitting Barker to give testimony about MIDCOs business practices where that testimony was based on hearsay and admitting evidence about what other employees did before the start of the shift and the reasons why the ten minute rule was adopted.
All of these challenged rulings are reviewed for abuse of discretion and “[w]e will not reverse such decisions unless there is palpable error.” Carrel v. National Cord & Braid Corp., 447 Mass. 431, 446 (2006). We have reviewed the record carefully and discern no abuse of discretion. Much of the challenged evidence related to background information and, as such, was not prejudicial. Other evidence such as MIDCOs business practices and its policies and procedures was relevant to the defendants’ affirmative defense of setoff and, as a result, was properly admitted. See Palinkas v. Bennett, 416 Mass. 273, 276 (1993) (“evidence of business habits or customs are admissible to prove that an act was performed in accordance with the habit”). Accord Mass. G. Evid. § 406(a) (2022) (“Evidence of the routine practice of a business organization or of one acting in a business capacity, if established through sufficient proof, may be admitted to prove that on a particular occasion the organization or individual acted in accordance with the routine practice”). Lastly, evidence regarding the reasons for adopting the ten minute rule, while not necessarily relevant to the question whether MIDCO violated the Wage Act, was first solicited by Prudencios attorney. Once that “door was open,” the judge properly permitted the defendants to introduce additional evidence on the subject.
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Given our conclusion that none of the challenged evidentiary rulings resulted in error, it follows that the judge did not err by not giving curative instructions limiting the jurys consideration of the evidence he deemed admissible.
2. Jury instructions. Next, Prudencio contends that he is entitled to a new trial because the judge failed to instruct the jury that a violation of the Wage Act could be established by proof that MIDCO failed to pay him for all the time he was required to be at work for “any single day” and did not require proof of a general practice of nonpayment. Prudencio further argues that the alleged error was exacerbated by defense counsels comments in her closing regarding Prudencios burden of proof. We discern no error.
“The trial judge has wide discretion in framing the language used in jury instructions.” Kiely v. Teradyne, Inc., 85 Mass. App. Ct. 431, 441 (2014). The judge was under no obligation to use the precise language proposed by Prudencio. Moreover, the judge gave a detailed instruction regarding the definition of “work time” for which payment was required.
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Nor was the judge required to specifically correct statements made by the defendants’ attorney in her closing argument about the plaintiffs’ burden to prove that they arrived to work early “every day.” Prudencio was adequately protected by the judges instruction to the jury that the opening statements and the closing arguments of counsel were not evidence.
3. Judges demeanor. Lastly, we discern no merit in Prudencios claim that he is entitled to a new trial on the ground that the judge acted disrespectfully toward him and his attorney. The judge acknowledged that he occasionally used a harsh tone and was “sharp” with both attorneys, for which he apologized and instructed the jury not to hold his impatience against either party. Prudencios attorney responded to the judges apology as follows: “You dont need to [apologize] ․ because I think your behavior is exceptional.” Later, in his closing argument, counsel said that the judge was “fantastic,” and described him as “patient, diligent.” The judge gave another forceful admonition to the jury during his final instructions that they were to decide the case solely on the evidence and not on anything that had occurred in the courtroom, including his demeanor. We discern no “disrespect” toward Prudencio or his attorney requiring a new trial.
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Judgment affirmed.
Order denying motion for judgment notwithstanding the verdict, or alternatively, for new trial, affirmed.
FOOTNOTES
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. Prudencio commenced this action on October 19, 2011, filing an amended complaint eight days later. He subsequently purportedly filed multiple additional amended complaints. By order dated April 3, 2014, a Superior Court judge, based in part on counsels’ representations, deemed Prudencios purported Eighth Amended Complaint the operative complaint; that amended complaint included three additional counts, only one of which -- an alleged failure to pay all vacation time accrued at the termination of Prudencios employment -- proceeded to trial. None of these additional three counts are pertinent to this appeal.
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. The jury also found that Prudencio failed to prove that he was owed one weeks vacation pay. Prudencio has not pursued this claim on appeal.
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. There was conflicting testimony on the issue whether Prudencio was laid off or was terminated at the end of his three discrete periods of employment, but nothing turns on this discrepancy. There was no dispute that Prudencios employment was terminated in June 2011.
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. Other employees, including two supervisors, testified that the rule was never followed and was not enforced. Alesandro Grutti, another field installer, testified that “nobody ever went by it [the policy].” He further testified that the ten minute rule was never explained at company meetings, employees tended to arrive right at the start of their shifts, and Prudencio never followed the ten minute rule. Roger Farrell, who worked as a foreman, also testified that “nobody paid attention to that thing [the ten minute rule].” In addition, although Barker testified at his deposition that he never intended to pay the employees for the ten minutes in question, at trial he asserted that he instructed employees to report all the time that they worked. Although Barker acknowledged that Prudencio “always showed up at the jobsite 25 to 30 minutes before his start-time” and usually left fifteen to twenty minutes early, he also stated that Prudencio “[n]ever, ever” worked an extra ten minutes per day for MIDCO. We note that the jury were free to credit Barkers trial testimony and reject what he said in his deposition, and to credit Barkers testimony that Prudencio never worked an extra ten minutes.
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. The work hours policy as set forth in the manual established a standard forty hour work week running from Monday to Friday, and specified that the work hours of field personnel commenced at 7 a.m. and ended at 3:30 p.m., with thirty (unpaid) minutes for lunch. The policy also required all field personnel “to work at least 8 hours per day at jobsite, unless [the] job is completed, regardless of location or work hours.” MIDCO provided all field employees with a fifteen minute paid break in the morning and an unpaid thirty minute lunch break.
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. Although Prudencio testified that sometimes he reported his hours to a supervisor or to the office, there was no dispute that all field employees self-reported their work hours.
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. Prudencio sought review of the judges order pursuant to G. L. c. 231, § 118. His petition was denied following a hearing by a single justice of this court.
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. “In reviewing the denial of a motion for judgment notwithstanding the verdict, as well as for a directed verdict, the standard to be employed is whether the evidence, construed against the moving party, justifies a verdict against him” (quotations omitted). Morgan v. Laboratory Corp. of Am., 65 Mass. App. Ct. 816, 817 n.4 (2006).
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. We note that it matters not, as Prudencio argues, that some of the challenged evidence about the general practices of other employees before and during their shifts, industry practice, and the motive for the ten minute rule was initially excluded prior to trial. The judge was entitled to reconsider all prior rulings as the trial unfolded. Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 401 (2003).
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. The judge instructed the jury that the defendants were required to pay wages earned for “all the time during which an employee is required to be on the employers premises, or to be on-duty, or to be at the prescribed worksite or at any other location, and any time worked before or after the end of the normal shift, to complete the work.” See 454 Code Mass. Regs. § 27.02 (2016) (defining “working time” for purposes of claim under the minimum fair wage law, G. L. c. 151, §§ 1-22). Without deciding, we have assumed as the parties and the judge did, that these and the predecessor regulations, which were promulgated under G. L. c. 151, are applicable to a claim for unpaid wages under the Wage Act. See Taggart v. Wakefield, 78 Mass. App. Ct. 421, 423 (2010).
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. Prudencios request for an award of appellate attorneys fees is denied.