Opinion
No. 11–P–1706.
2012-07-25
CHUAN WANG v. INTERNATIONAL BUSINESS MACHINES CORPORATION & others.
By the Court (GREEN, GRAINGER & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
We review the grant of summary judgment in favor of the defendants de novo. See Scott v. Encore Images, Inc., 80 Mass.App.Ct. 661, 665–666 (2011). We conclude that summary judgment in favor of the defendants must be affirmed with respect to all except counts 2 and 6 of the complaint.
The defendants argue that pro se plaintiff Chuan Wang was not an employee of Artech Information Systems, LLC (Artech) or of International Business Machines Corporation (IBM). With respect to Artech, the defendants argue that there was no employment contract. A formal employment contract, however, is not a prerequisite to employee status under the Wage Act. See G.L.c. 149, § 148B. The test is whether an individual “performs services” for the employer. Somers v. Converged Access, Inc., 454 Mass. 582, 589 (2009). See Stanton v. Lighthouse Financial Servs. Inc., 621 F.Supp.2d 5, 11 (D.Mass.2009) (“The Wage Act creates a rebuttable presumption that any individual ‘performing any service’ for another is an employee for purposes of Section 148”) (internal quotations omitted). Here, Wang accepted an offer to work for $65 per hour, was provided with a laptop computer, was allowed access to the IBM network, and was given an assignment by IBM; there is a genuine issue of material fact whether he engaged in at least some work pursuant to that assignment. Documents prepared by Artech describe him as an “employee” who was “terminated.” The defendants do not allege that he did any work as an independent contractor. Thus, there is a genuine issue of material fact whether he was an employee within the meaning of the Wage Act.
The parties did not agree to other terms of the formal employment contract, and at one point Wang indicated that he would agree to certain provisions only if he were paid a higher hourly rate. As explained in the text, however, one who does work for an employer may be an employee even in the absence of a formal contract.
Whether Wang was an employee of IBM, as well as of Artech, also implicates unresolved questions of material fact. It appears that Wang was hired by Artech to work on a specific project at IBM after interviewing with IBM, being selected for the project by IBM, and having IBM instruct Artech to hire him for purposes of working on the IBM project. The defendants argue that Artech is an “employee leasing company” as defined in G.L.c. 152, § 14A, and that Wang was, if anything, its employee, and not an employee of the “client company” as defined in that section—which is how the defendants describe IBM. Even assuming that this statute is relevant for purposes other than the workers' compensation coverage to which it relates, there are genuine issues of material fact whether Wang was an employee of Artech or, rather, of IBM. In order for a company to be an “employee leasing company” working with a “client company,” there must be a contractual relationship between the two companies. See G.L.c. 152, § 14A. In this case, the contract placed into the record by the defendants postdates the period of time that is relevant to this case. There is thus no evidence in the record before us of such a contractual relationship. While this does not necessarily mean Wang was an employee of IBM, there is a genuine issue of fact about the nature of the relationship between IBM and Wang.
Finally, there is also a genuine issue of fact whether Wang was terminated in retaliation for asserting his rights under the Wage Act. G.L.c. 149, § 148B. The employment contract Artech sought to have Wang sign contained a probationary clause stating that there would be a thirty-day probationary period and that Wang would not be paid $55 of his $65 per hour wage if, before the end of the probationary period, he resigned or was terminated by IBM. The contract explained that Wang would be required to reimburse Artech for amounts paid to him as a draw during the probationary trial period, since “Artech will receive no payment for services performed ... by Employee from the proposed client if the proposed client terminates Employee during the probationary trial period.” The Supreme Judicial Court recently explained in Awuah v. Coverall N. Am., Inc., 460 Mass. 484, 491–493 (2011), that arrangements which make receipt of an agreed-upon wage for which work was performed by an employee contingent upon customer payment are unlawful under the Wage Act. In this case, the record evidence indicates that Artech was willing to make changes in two other clauses in the employment agreement, an arbitration clause and a breach of contract clause, only if Wang would give up his objection to the probationary clause. Because the probationary clause violates the Wage Act, it was not permissible for Artech to insist as a condition of any other term of his employment that Wang drop his objection to it.
Count 2 of the amended complaint alleges discharge in retaliation for Wang seeking rights provided under the Wage Act. Summary judgment with respect to that count must be reversed. Likewise, count 6 alleges that Artech intentionally interfered with his relationship with IBM by terminating the employment relationship in retaliation for his assertion of rights provided by the Wage Act. Summary judgment on this count, too, must be reversed.
Summary judgment with respect to all the other counts, however, was properly granted.
Counts 1 and 8 are based on a refusal to pay wages due Wang for the work he did during his brief period of employment. The undisputed facts show that Artech is willing to pay Wang wages for any work actually done during that time period, that Artech has requested that he provide documentation for the hours worked, and that he has refused to do so. Wang has not demonstrated that conditioning payment of wages on documentation of work performed is a violation of the Wage Act or the Fair Labor Standards Act.
Wang appears to argue that he was unable to submit timesheets because he was required also to submit his hours through IBM's intranet computer system, to which he lacked access. At the very least, Artech demonstrated a willingness to accept timesheets without computer input when, in response to a letter from Wang's counsel, it sent Wang timesheets and asked that he fill them out in order to be paid.
Count 4 alleges negligence in the failure to report to governmental entities the wages paid to Wang. The claim is that he might have received unemployment insurance benefits had his wages properly been reported. Again, however, Wang has, through his own failure to submit substantiating timesheets to Artech, failed to demonstrate what amount ought to have been reported. In light of this, Wang has not demonstrated that summary judgment was entered in error on this count.
Similarly, Count 5 alleges negligent violation of a common law duty to pay Wang timely for his work. Whether framed as a duty under the common law or under Massachusetts wage laws, in light of Wang's failure to provide documentation on the basis of which the defendants might have paid him for his work, Wang has demonstrated no error in the entry of summary judgment against him on this count.
Count 3 alleges that, in retaliation for his assertion of his rights under G.L.c. 149, IBM failed to hire Wang when he subsequently submitted his resume to IBM. Aside from his own surmise, Wang has provided no evidence in support of this count. Likewise, counts 9, 10, and 11 allege discrimination against Wang on the basis of race and age. The record indicates that Wang is fifty-three years old and Chinese–American. There is, however, no evidence in the record that either age or race has played any role in any of the decisions made by the defendants with respect to Wang.
Given the timing of Wang's motion, there was no abuse of discretion or other error in the judge's refusal to allow Wang to dismiss without prejudice Federal claims under Mass.R.Civ.P. 41(a), 365 Mass. 803 (1974), and to have entered summary judgment upon their merits.
Finally, count 7 alleges a violation of the common law doctrine of “public policy.” Wang has not demonstrated that there is a freestanding cause of action for a violation of public policy.
Wang filed an affidavit pursuant to Mass.R.Civ.P. 56(f), 365 Mass. 825 (1974). We see no abuse of discretion in the judge's denial of Wang's request for a continuance of the summary judgment proceedings to allow him to conduct discovery, to the extent the question remains a live issue in light of our holding above.
The determination that the individual defendants should be dismissed for lack of personal jurisdiction was not error. However, because, as Wang correctly argues, this was not an adjudication on the merits, Bevilacqua v. Rodriguez, 460 Mass. 762, 780 (2011), that dismissal should have been without prejudice, ibid., and the judgment shall be modified accordingly.
So much of the judgment as dismisses counts two and six of the complaint is reversed. In all other respects, the judgment, as modified, is affirmed. The case is remanded to the Superior Court for further proceedings consistent with this memorandum and order.
So ordered.