Opinion
SUCV201302347BLS1
05-24-2018
SIEW-MEY TAM et al.[1] v. FEDERAL MANAGEMENT CO., INC. et al.[2]
MEMORANDUM OF DECISION AND ORDER ON (1) DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF SIEW-MEY TAM, AND (2) PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
Mitchell H. Kaplan, Justice of the Superior Court
The plaintiff, Siew-Mey Tam, filed this action against the defendants, Federal Management Co., Inc. (Federal Management), Richard Henken, David Flad, and Peter Lewis, after the defendants terminated her as a property manager at an apartment complex that Federal Management managed. Tam claims in Count I of her complaint that Federal Management misclassified her as an employee exempt from the overtime requirements of G.L.c. 151, § 1A. She demands overtime pay for all hours that she alleges she worked in excess of forty hours each week. In Count II, Tam claims that the defendants failed to pay her timely wages under G.L.c. 149, § 148, because they wrongfully failed to pay her any overtime pay.
The case is presently before the court on the defendants’ motion for summary judgment and the plaintiffs’ motion for partial summary judgment on the only remaining counts in this case, Counts I and II. On May 4, 2018, the court heard oral arguments on the motions. For the following reasons, the defendants’ motion for summary judgment is ALLOWED and the plaintiffs’ motion for partial summary judgment is DENIED.
THE SUMMARY JUDGMENT RECORD
Before considering whether the summary judgment record reveals any disputed, material issues of fact, the court must address the question of what materials are properly part of the summary judgment record. Tam was deposed on May 26, 2016. On April 12, 2017, defendants served this motion for summary judgment by electronic mail on Tam’s counsel, Attorney Frederick T. Golder. On May 11, 2017, Attorney Golder served defendants with Tam’s own cross motion for partial summary judgment and her opposition to defendants’ motion for summary judgment. In support of her motion and opposition, he attached an affidavit signed by Tam, dated May 8, 2017, that contradicted much of Tam’s deposition testimony. Additionally, on May 11, 2017, Attorney Golder served a thirty-two-page deposition errata sheet relating to Tam’s May 26, 2016 deposition. According to the errata sheet, Tam signed it on May 8, 2017-almost one year after she was deposed and obviously in response to the defendant’s motion for summary judgment. In the errata sheet, Tam makes numerous changes to her deposition testimony claiming, among other things, that she was confused during the deposition or that defendants’ attorney was attempting to put "words in my mouth." Defendants note that through the errata sheet, Tam attempts to reverse unequivocal answers from "yes" or "yeah" to "no," and vice versa, more than sixty times. See Defendants’ Reply Memorandum at 3.
Largely based on discrepancies between Tam’s deposition testimony and an affidavit that she had previously filed with the court in support of her Motion for Class Certification, this Court decertified the class. See Memorandum and Order dated November 30, 2016 (Leibensperger, J.) . The Court found that Tam was not an adequate class representative because she "is so impaired by her admitted falsehoods and recklessness with respect to her sworn statements that the credibility of the claims of the putative class would be adversely affected."
As this court explained at the May 4, 2018 hearing, the court will not consider Tam’s May 8, 2017 affidavit, to the extent it contradicts plain statements affirmatively made by Tam in her deposition transcript, or the errata sheet in ruling on the motions for summary judgment. See O’Brien v. Analog Devices, Inc., 34 Mass.App.Ct. 905, 906 (1993) (recognizing that "a party cannot create a disputed issue of fact by the expedient of contradicting by affidavit statements previously made under oath at a deposition"). See also Smaland Beach Ass’n, Inc. v. Genova, 461 Mass. 214, 227-30 (2012) (Smaland) ("While substantive changes to errata sheets are permitted under Rule 30(e), we caution deponents and attorneys to invoke this privilege sparingly. The errata sheet is intended as a tool to correct mistakes in deposition testimony or subsequent transcription. It is not to be used as a mechanism to inject additional facts into the testimony of a single deponent ..."). In Smaland, the Supreme Judicial Court (SJC) adopted a more expansive use of the errata sheet under Mass.R.Civ.P. 30(e) than some Federal Courts permit under the analogous Federal rule; however, it also cautioned that an errata sheet ought not be used in a manner similar to a "sham" affidavit filed in opposition to a motion for summary judgment: "conflict between postdeposition affidavit and deposition testimony may not be used to create disputed issue of fact to defeat summary judgment." Id. at 229 n.24, citing Lyons v. Nutt, 436 Mass. 244, 249 (2002). Moreover, in Smaland, the SJC also required "that any submitted changes comply with the procedural requirements of Rule 30(e)." Id. at 230. Rule 30(e) has explicit time limits for the submission of errata sheets: "If the deposition transcript is not signed by the witness within 30 days of its submission to him, the officer shall sign it and state on the record the fact of the waiver ..." Tam’s errata sheet was served almost a year late. In determining whether disputed issues of fact exist in the summary judgment record of this case, the court will not consider the errata sheet or Tam’s affidavit to the extent either contradict unequivocal assertions in Tam’s deposition transcript.
BACKGROUND
Subject to the restriction explained above, the material facts revealed by the summary judgment record, viewed in the light most favorable to Tam, are as follows.
Federal Management is a property management company located in Braintree, Massachusetts. It manages residential, commercial, and retail properties and provides building operations, financial administration, leasing, and regulatory compliance services. Among the properties managed by Federal Management are subsidized housing projects-one such project is Mason Place.
From May 23, 2005 to April 18, 2012, Tam was the property manager at Mason Place, a 127-unit, low-income apartment building in downtown Boston, Massachusetts. Mason Place had an operating budget of more than $3 million. Federal Management treated Tam as a salaried, overtime exempt employee. She was paid a salary substantially in excess of $455 per week at all relevant times and generally received the same weekly fixed salary regardless of the number of hours she worked each week. Her work hours varied from week to week.
During Tam’s employment with Federal Management, she worked with two or more additional full-time employees, as well as part-time employees: a full-time maintenance supervisor, a full-time janitor, a part-time resident service coordinator, and a part-time administrative assistant. As Mason Place’s property manager, Tam’s job duties included: overseeing all day to day operations of the 127-unit property, preparing budgets, overseeing vendor relations, and ensuring the financial and physical health of the property. Tam’s day to day operations at Mason Place consisted of overseeing maintenance requests and repairs, communicating with maintenance staff, assisting and monitoring contractors, and maintaining a security presence at the building. She was also responsible for rent collection, making sure the apartments were fully occupied, assisting with apartment leases and resident paperwork, and complying with government certifications.
In addition to this action, Tam also filed a discrimination case against the same defendants: Suffolk CA No. 15-1131A. On April 6, 2016, Tam signed responses to defendants’ first set of interrogatories in that action. Interrogatory No. 2 asked Tam to: "Describe all of your job duties and responsibilities at Federal Management throughout your employment with Federal Management. If your duties and/or responsibilities changed over time, please describe the changes and the dates on which the changes occurred." Tam responded with a list of detailed duties including: financial (e.g., creating and adhering to property budgets; maintaining positive cash flow; preparing monthly budget reports; maintaining accurate resident and property records; approving purchase orders for goods and services; and overseeing security deposits); resident relations (e.g., handling resident complaints and concerns; monitoring service requests; and physical inspections of units); marketing (e.g., preparing marketing plan; greeting prospective residents; answering routine calls; reviewing and approving all applications for residency; and complying with federal regulations); supervisory (e.g., supervising and evaluating all site staff; completing annual reviews; interviewing new hires; auditing leasing activities; and conducting staff meetings); and general and administrative duties (e.g., conducting unit inspections; overseeing capital improvement projects; and general office duties). At her May 26, 2016 deposition, Tam was asked if this was an accurate description of her job duties. She was given an opportunity to cross out any part of her answer to Interrogatory No. 2 that she maintained had not been part of her job at Mason Place. She struck that part of the answer that referenced hiring, firing, and disciplining of all site staff. She expressly confirmed that the balance of this interrogatory answer accurately reflected the work she did as Property Manager at Mason Place.
Only David Flad is not also named as a defendant in CA 15-1131A.
It appears that in answer to this Interrogatory No. 2, Tam simply copied the Federal Management job description for her position.
Each year, Tam received written performance reviews. Her supervisor evaluated her in the following categories: job knowledge, cost consciousness, customer service, problem solving, managing people, communications, leadership, judgment, and dependability. Tam also conducted written performance reviews of Mason Place staff. She rated them in various job-related areas, provided comments, and gave the staff individual goals for the upcoming year.
From 2010 to April 2012, Tam reported to John Desjardins, a senior property manager for Federal Management. As a senior manager, Desjardins was responsible for overseeing five separate properties, one of which was Mason Place. He split his time among the five properties that he supervised. Desjardins did not have an office at Mason Place and visited the property about once a week, or sometimes less frequently. Tam believed that she worked independently at Mason Place and did not need supervision.
According to David Flad, chief operating officer of Federal Management, Tam had significant autonomy in running the day-to-day operations at Mason Place and had the authority to make most of the daily decisions affecting the property. Tam does not contest that description in any meaningful way.
On April 18, 2012, Federal Management terminated Tam’s employment with the company for reasons unrelated to this action.
On June 27, 2013, Tam filed this action in the Superior Court.
DISCUSSION
Summary judgment will be granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c); Cassesso v. Commissioner of Corr., 390 Mass. 419, 422 (1983). To prevail on summary judgment, the moving party must affirmatively demonstrate the absence of a triable issue, and that the summary judgment record entitles it to a judgment as a matter of law. Pederson v. Time, Inc., 404 Mass, 14, 16-17 (1989). "[A]ll evidentiary inferences must be resolved in favor of the [nonmoving party]." Boyd v. National R.R. Passenger Corp., 446 Mass. 540, 544 (2006).
The nonmoving party, however, cannot defeat a motion for summary judgment by merely asserting that facts are disputed. Mass.R.Civ.P. 56(e); LaLonde v. Eissner, 405 Mass. 207, 209 (1989). Rather, to defeat summary judgment, the nonmoving party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714 (1991). "Conclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient." Cullen Enters., Inc. v. Massachusetts Prop. Ins. Underwriting Ass’n, 399 Mass. 886, 890 (1987), quoting Madsen v. Erwin, 395 Mass. 715, 721 (1985).
The Fair Labor Standards Act’s overtime provisions "establish the general rule that employees must be compensated at a rate not less than one and one-half times their regular rate for all overtime hours." Cash v. Cycle Craft Co., Inc., 482 F.Supp.2d 133, 135 (D.Mass. 2007). See 29 U.S.C. § 207(a)(1). Overtime is any employment in excess of forty hours in a single workweek. Cash v. Cycle Craft Co., Inc., 482 F.Supp.2d at 135. However, "[a]n employer is exempted from this general rule for employees employed in a ‘bona fide executive, administrative, or professional capacity.’" Id. (Citation omitted.)
General Laws c. 151, § 1A, which also governs overtime pay, is essentially identical to Federal law governing overtime pay. Swift v. Auto-Zone, Inc., 441 Mass. 443, 447 (2004); Goodrow v. Lane Bryant, Inc., 432 Mass. 165, 171 (2000). The statute states in relevant part that "[e]xcept as otherwise provided in this section, no employer in the commonwealth shall employ any of his employees in an occupation ... for a work week longer than forty hours, unless such employee receives compensation ... in excess of forty hours at a rate not less than one and one-half times the regular rate at which he is employed." G.L.c. 151, § 1A. It also provides an exception where an employee is employed "as a bona fide executive, or administrative or professional person ... earning more than eighty dollars per week." G.L.c. 151, § 1A(3).
Federal Management contends that it properly classified Tam as exempt from overtime pay. The defendants make two primary arguments in support of their motion for summary judgment: (1) that Tam is an exempt "executive" employee, and (2) that Tam is an exempt "administrative" employee. An exempt administrative employee is any employee: "(1) who receives a ‘salary’ of at least $455 per week; (2) ‘[w]hose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers’; and (3) ‘[w]hose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.’" Cash v. Cycle Craft Co., Inc., 482 F.Supp.2d at 136. See 29 C.F.R. § 541.200(a)(1)-(3). See also Crowe v. Examworks, Inc., 136 F.Supp.3d 16, 37-43 (D.Mass. 2015) (discussing administrative exemption).
The summary judgment record in this case, viewed in the light most favorable to Tam, demonstrates that she is an exempt administrative employee and therefore not entitled to overtime pay. First, it is undisputed that at all relevant times, Tam received a salary of more than $455 per week.
Second, her primary duty as property manager of Mason Place was the performance of office or non-manual work directly related to Federal Management’s management of Mason Place. See Marzuq v. Cadete Enterprises, Inc, 807 F.3d 431, 438 (1st Cir. 2015) ("[A]n employee’s ‘primary’ duty is not determined solely by the amount of time he or she devotes to the different categories of tasks-i.e., exempt vs. nonexempt-but on the overall character of his or her position"). Tam generally performed office and management work related to the day-to-day operations of Mason Place. As discussed above, Tam was responsible for, among other things, collecting rent from Mason Place’s residents, leasing units to prospective tenants, and making sure that maintenance requests were fulfilled by directing maintenance staff to address residents’ problems. At various times, her duties encompassed aspects of budgeting, managing contractors who performed repairs, managing maintenance staff, marketing of units, governmental regulatory compliance, and ensuring that Mason Place functioned properly for its tenants. Moreover, there is no evidence in the summary judgment record to suggest that Tam performed any maintenance work or manual labor on her own at Mason Place; Federal Management employed maintenance staff to perform these functions.
"To qualify for the administrative exemption, an employee’s primary duty must be the performance of work directly related to the management or general business operations of the employer or the employer’s customers. The phrase ‘directly related to the management or general business operations’ refers to the type of work performed by the employee. To meet this requirement, an employee must perform work directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment." 29 C.F.R. § 541.201(a).
The regulations further provide that: "Work directly related to management or general business operations includes, but is not limited to, work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations, government relations; computer network, internet and database administration; legal and regulatory compliance; and similar activities. Some of these activities may be performed by employees who also would qualify for another exemption." 29 C.F.R. § 541.201(b).
Third, Tam’s role as the only property manager on site in this 127-unit apartment building clearly required her to make discretionary, management decisions on a day-to-day basis. There was no other Federal Management employees available to do so. "[S]uch discretion generally involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered ... Such judgment and discretion generally means the ability to affect operations without prior approval. Such an employee is not excluded from this exception just because his [or her] decisions are reviewed at a higher level." Cash v. Cycle Craft Co., Inc., 482 F.Supp.2d at 139 (citations and internal quotation marks omitted). See 29 C.F.R. § 541.202 (explaining discretion and independent judgment requirement). As noted above, Tam’s duties at Mason Place included, among other things: financial (e.g., creating and adhering to property budgets; maintaining positive cash flow; preparing monthly budget reports; maintaining accurate resident and property records; approving purchase orders for goods and services; and overseeing security deposits); resident relations (e.g., handling resident complaints and concerns; monitoring service requests; and physical inspections of units); marketing (preparing marketing plan; greeting prospective residents; answering routine calls; reviewing and approving all applications for residency; and complying with federal regulations); supervisory (e.g., supervising and evaluating all site staff; completing annual reviews; participating in the interviews of new hires; auditing leasing activities; and conducting staff meetings); and general and administrative duties (e.g., conducting unit inspections; overseeing capital improvement projects; and general office duties).
"Factors to consider when determining whether an employee exercises discretion and independent judgment with respect to matters of significance include, but are not limited to; whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices; whether the employee carries out major assignments in conducting the operations of the business; whether the employee performs work that affects business operations to a substantial degree, even if the employee’s assignments are related to operation of a particular segment of the business; whether the employee has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior approval; whether the employee has authority to negotiate and bind the company on significant matters; whether the employee provides consultation or expert advice to management; whether the employee is involved in planning long- or short-term business objectives; whether the employee investigates and resolves matters of significance on behalf of management; and whether the employee represents the company in handling complaints, arbitrating disputes or resolving grievances." 29 C.F.R. § 541.202(b).
In fact, Tam testified that she worked independently and did not need supervision. Accordingly, Federal Management employed Tam in an "administrative" capacity, and she is therefore exempt from overtime pay requirements as a matter of law.
Because the court concludes that the summary judgment record readily establishes that Tam is an exempt "administrative employee," the court does not reach Federated Management’s argument that she is also an exempt "executive" employee. The court is less convinced that Tam was actively engaged in decisions to hire and fire employees, and while Tam certainly made decisions on where to deploy the services of the maintenance engineer and janitor on a day-to-day basis, it is less clear whether they reported to her or central management. However, establishing one exemption is sufficient to support Tam’s classification, and a careful review of the summary judgment record establishes that Tam does not meaningfully dispute performing the services and exercising the discretion of an administrative employee.
ORDER
For the foregoing reasons, Defendants’ Motion for Summary Judgment is ALLOWED and Plaintiffs’ Motion for Partial Summary Judgment is DENIED. As all other counts of the complaint have previously been dismissed in either the court’s Memorandum of Decision and Order on Defendant’s Motion to Dismiss (June 18, 2015) or Memorandum and Order on Defendants’ Motion for Summary Judgment Against Plaintiff Mary Jane Raymond (July 26, 2017), Final Judgment shall enter for the defendants dismissing all claims; costs are awarded to the defendants.