Opinion
SUCV20180033BLS2
11-20-2019
Goret Johnson et al. Individually and on Behalf of Others Similarly Situated v. The Edgar P. Benjamin Healthcare Center, Inc.
File Date: November 21, 2019
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Sanders, Janet L., J.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Janet L. Sanders, Justice
Plaintiffs Goret Johnson and Natacha Thermitus bring this action against The Edgar P. Benjamin Healthcare Center, Inc. (EBHC), alleging that EBHC routinely altered the time records of its non-exempt employees to avoid paying them for the entirety of the time they worked. Johnson, EBHC’s former Human Resources (HR) Director, maintains that EBHC terminated her for bringing employees’ concerns about this so-called "time shaving" to the attention of EBHC and asserts a retaliation claim under the Wage Act (Count I), a common-law retaliation claim (Count III) as well as a Wage Act claim for unpaid sick time (Count II). Thermitus, a licensed practical nurse, alleges that she was one of the employees whose time records EBHC altered and asserts a claim under the Wage Act (Count IV) and a claim for breach of contract (Count V). Thermitus asserts these claims individually and on behalf of those similarly situated. EBHC now moves for summary judgment on all their claims. The plaintiffs do not oppose the motion as to Counts II and Count V. With regard to the remaining Counts, this Court concludes that the Motion must be DENIED .
BACKGROUND
The summary judgment record, construed in the light most favorable to the plaintiffs as the nonmoving parties, shows the following. EBHC provides skilled nursing and rehabilitation services to low-income Boston residents. It employs a variety of nursing staff and maintenance workers, most of whom are members of the 1199SEIU United Healthcare Workers East (Union) and are subject to a Collective Bargaining Agreement (CBA). From September 2016 to December 2017, Thermitus, a licensed practical nurse, was part of EBHC’s nursing staff. In January 2017, she became a Union member and her regular rate of pay was raised to $28 per hour.
At all relevant times, EBHC used a third-party vendor, ADP, to process its payroll. EBHC also used an ADP-provided time clock for tracking the work time of its nursing staff and other non-exempt employees. These employees, including Thermitus, were required to punch into the time clock when their shifts began and punch out when their shifts ended. EBHC nurses worked according to three different shifts: 7:00 am to 3:00 pm (first shift), 3:00 pm to 11:00 pm (second shift), and 11:00 pm to 7:00 am (third shift). Among other things, the CBA then in effect provides that Union employees must "be on their unit or department ready to work at the start of their scheduled shift; punch out no earlier than the end of their scheduled shift; and may not leave their unit or department until the end of their scheduled shift to wait at the time clock in order to punch out." CBA at § 9.2(d). The CBA also provides that employees have a seven-minute grace period to punch in at the beginning of their shift, "which shall not be abused." Id.
From January 2016 to December 2017, Johnson was employed as EBHC’s HR Director. She reported directly to Tony Francis, EBHC’s Chief Executive Officer. According to Johnson (and this Court accepts her deposition testimony as true for purposes of this motion), she almost immediately began to receive complaints from fellow employees that they were not paid for the entirety of the time they worked. Some of these individuals provided printouts of their punch times to support their assertions. Johnson brought the complaints to the attention of both Tobbie Marshall, the head of payroll, and to Francis and requested that these employees be paid what they were purportedly owed. In her deposition testimony, Johnson specifically identified multiple employees, including Thermitus, who reported these alleged errors to her. Thermitus in turn spoke with Ursula Allston, EBHC’s scheduler, and Ana-Paula Santos, Francis’ executive assistant, about these discrepancies in the payroll records. In each instance, EBHC subsequently paid the employee additional wages.
Matters came to a head in October/November 2017. Johnson logged into the ADP system because the number of complaints was increasing. Once she logged in, she realized that employees’ punch times were being manually altered and that the system had recorded who made those changes. Based on her review of those records, she determined that it was Marshall who had edited the employees’ punch times. Johnson confronted Marshall, who purportedly implicated Santos, Francis’s executive assistant. Johnson then spoke with Francis, who told her that Marshall was intentionally erasing employees’ time. Johnson told Francis that she planned to investigate the issue. Following this conversation, she did just that, running payroll reports. Francis terminated Johnson in December 2017. EBHC does not presently assert that Johnson was fired for poor performance and has provided no reason for her termination.
In support of its Motion, EBHC has submitted affidavits from Francis and Marshall. Francis’s affidavit neither discusses Johnson’s termination nor contradicts Johnson’s description of her interactions with him. Marshall’s affidavit describes one instance in which Johnson allegedly approached her with a question about missing pay in an unidentified male employee’s check. However, it does not address any of the other conversations Johnson purports to have had with her. In any event, these affidavits would at best raise disputes of fact. What is undisputed is that EBHC’s time records do indeed contain numerous examples of alterations in employees’ punch times.
DISCUSSION
The standard that this Court applies is well established. The defendant as the moving party bears the burden of affirmatively demonstrating that there is no genuine issue of material fact such that it is entitled to judgment as a matter of law. Rule 56(c), Mass.R.Civ.P. A fact is "material" if it would affect the outcome. Carey v. New England Organ Bank, 446 Mass. 270, 278 (2006). It is "genuine" if a reasonable fact finder could return a verdict for the nonmoving party. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991). When assessing whether a genuine factual dispute exists, the court will construe the facts in the light most favorable to the nonmoving party. Harrison v. NetCentric Corp., 433 Mass. 465, 468 (2001). In the instant case, there are clearly genuine issues of material fact in dispute. This Court will largely confine itself to discussing the legal arguments that the defendant raises.
Count I is brought pursuant to the second paragraph of G.L.c. 149, § 148A which prohibits an employer from "discharg[ing] or in any other manner discriminat[ing] against any employee because such employee has made a complaint to the attorney general or any other person ..." To succeed on this claim, Johnson must put forward evidence that she engaged in protected conduct, that she suffered some adverse action, and that a causal connection existed between the protected conduct and the adverse action. See Mole v. University of Massachusetts, 442 Mass. 582, 591-92, 595 (2004). EBHC argues that Johnson cannot prevail on Count I because she did not engage in activity protected by G.L.c. 149, § 148A: rather than exercising her own rights under the statute, Johnson (EBHC argues) was simply passing on the concerns of other employees. EBHC analogizes this case to Smith v. Winter Place, LLC, 447 Mass. 363, 365-66 (2006), but that case is distinguishable on its facts.
Smith concerned a maitre d’ who designed and implemented a tip pooling system for a restaurant’s wait staff and was later fired when he told management that the staff believed the system violated the Wage Act. The SJC concluded that the maitre d’ could not benefit from the Wage Act’s protection against retaliation because he was simply conveying complaints to higher management about a system that he himself created and implemented. In the instant case, Johnson played no part in altering payroll records and repeatedly advocated for the employees, acting as much more than a conduit for their complaints. Significantly, the SJC in Smith stated that the second paragraph of G.L.c. 149, § 148A "likely would protect an employee (or manager) from being punished for asserting the rights of another employee or complaining to management on that employee’s behalf." Id. at 369. Under this interpretation, Johnson clearly falls within the statutory protection against retaliation. That there may be testimony in the record to contradict Johnson’s account or that this is not otherwise corroborated is certainly not a basis for granting summary judgment.
Count III asserts a claim for retaliation under the common law. As it did with Count I, EBHC argues that this claim fails because Johnson was not asserting her own rights but rather the rights of others. This common-law right of action is not as narrow as EBHC depicts it, however. The common law provides redress to an at-will employee who is terminated for "asserting a legally guaranteed right," for "doing what the law requires," or for "refusing to do what the law forbids." Smith-Pfeffer v. Superintendent of the Walter E. Fernald State School, 404, Mass. 145, 149-50 (1989). That Johnson was asserting another’s rights does not mean she is deprived of a common-law remedy. In a footnote to its memorandum, EBHC asserts an alternative basis for summary judgment, contending that, if the Wage Act claim survives, then plaintiffs may not simultaneously assert this common-law claim because it is "preempted." In support, however, it cites Lipsitt v. Plaud, 466 Mass. 240 (2013), which reaches the opposite conclusion, expressly holding that the Wage Act did not preempt common-law claims for breach of contract and quasi-contract. Although establishing a violation of the Wage Act provides the plaintiff with the added benefit of treble damages and attorneys fees, there is no reason at this point in the litigation to dismiss the common-law claim, since it provides an alternative basis for relief if for any reason the plaintiff is unable to pursue the statutory claim.
EBHC also makes a preemption argument as to Thermitus’s Wage Act claim (Count IV), contending that, because Thermitus is a Union employee subject to a collective bargaining agreement, her claim is preempted by Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a). This Court disagrees. Section 301 of the LMRA preempts a state law claim only where "the resolution of [that] claim depends on the meaning of a collective-bargaining agreement." Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988). That occurs only where the claim is "founded directly on rights created by [the] collective-bargaining agreement[ ]" or "substantially dependent on analysis of [the] collective-bargaining agreement." Caterpillar, Inc. v. Williams, 482 U.S. 386, 394 (1987) (internal quotation marks omitted and emphasis added). See also Butler v. Verizon New England, Inc., 68 Mass.App.Ct. 317, 321 (2007) (no preemption unless the claim is "inextricably intertwined with the pertinent terms of the CBA") (internal quotation marks omitted). Where the meaning of the CBA is not in dispute or where it is simply "consulted rather than actively interpreted" in the course of state-law litigation, the state law claim is not preempted. Livadas v. Bradshaw, 512 U.S. 107, 124 (1994). See also Butler, 68 Mass.App.Ct. at 322; Rueli v. Baystate Health, Inc., 835 F.3d 53, 58 n.3 (1st Cir. 2016). In the instant case, the CBA is relevant only to the extent that it sets forth wages, hours and overtime, and explains that employees are required to punch in and out. This lawsuit does not call into question the meaning of these provisions. Rather, the dispute is a factual one— whether EBHC altered the time records of Thermitus and other employees.
EBHC secondarily argues that Count IV must be dismissed because Thermitus failed to exhaust the grievance and arbitration procedures outlined in Article 18 of the CBA. The SJC has made clear, however, that "the right to timely payment of wages [under G.L.c. 149, § 148] is a distinct, independent statutory right that can be enforced judicially" notwithstanding whether the entitlement to compensation is addressed in a collective bargaining agreement. Newton v. Commissioner of Dept. of Youth Servs., 62 Mass.App.Ct. 343, 347 (2004). Given the existence of that independent right, a plaintiff is not required to pursue administrative remedies before commencing an action to recover overtime and the other wages. Id. at 347.
Finally, EBHC argues that the evidence is insufficient that Thermitus in fact was working the entirety of the time between when she punched in and when she punched out and thus will be unable to show that she was not paid for the hours worked. However, Thermitus testified that she was working whenever she punched in; this is in itself enough to create a genuine factual dispute, since the credibility of that claim can only be resolved by the trier of fact. Moreover, this argument ignores the summary judgment standard, which requires this Court to draw all reasonable inferences in favor of the nonmoving party.
CONCLUSION AND ORDER
For the foregoing reasons, Counts II and V are hereby DISMISSED with the plaintiffs’ agreement. As to the remaining counts, the defendant’s Motion for Summary Judgment is DENIED . Plaintiff’s Motion for Class Certification is scheduled for hearing on January 16, 2020 at 2:00 p.m.