Gallagher v. Cerebral Palsy of Massachusetts, Inc., et al. (Lawyers Weekly No. 11-117-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-1152 Appeals Court SUSAN GALLAGHER vs. CEREBRAL PALSY OF MASSACHUSETTS, INC., & others.[1] No. 16-P-1152. Norfolk. April 6, 2017. – September 13, 2017. Present: Green, Blake, & Lemire, JJ. MassHealth. Massachusetts Wage Act. Labor, Overtime compensation, Failure to pay wages. Independent Contractor Act. Regulation. Practice, Civil, Motion to dismiss, Summary judgment. Civil action commenced in the Superior Court Department on December 10, 2015. A motion to dismiss was heard by Rosalind Henson Miller, J. Paul L. Nevins for the plaintiff. Jeffrey S. Beeler for the defendants. LEMIRE, J. Susan Gallagher, a personal care attendant (PCA) who provided in-home services for an elderly man (consumer[2]), brought an action in Superior Court against Cerebral Palsy of Massachusetts, Inc.; its president, Donald Uvanitte; and its treasurer, David Sprague (collectively, CPM), alleging that CPM was her employer and that it failed to pay her for her overtime hours, including failing to do so at an overtime rate. A judge granted CPM’s motion to dismiss on the ground that, pursuant to the MassHealth regulations (regulations) governing Gallagher’s work arrangement, she was employed by the consumer, not CPM. Gallagher appeals from the judgment, and we affirm. Standard of review. Although there were exhibits attached to both CPM’s motion to dismiss and Gallagher’s opposition, the judge ostensibly declined to treat the motion as one for summary judgment, and she excluded the additional material from consideration. See Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974). But in a footnote explicitly listing the excluded exhibits, the judge did not identify as having been excluded one of CPM’s submissions: excerpts from a contract it executed with the Executive Office of Health and Human Services. That document establishes the applicability of certain of the regulations, including CPM’s role within that regulatory framework as a “fiscal intermediary,” i.e., an entity that serves in a facilitative role with regard to payroll and related matters. 130 Code Mass. Regs. § 422.402 (2006). These facts were not reflected in the complaint, but the judge cited them as dispositive. By relying on facts outside of the complaint, the judge essentially rendered a decision in the nature of summary judgment. Doucette v. Massachusetts Parole Bd., 86 Mass. App. Ct. 531, 533-534 (2014). We will review the decision as such, including taking into consideration the other excluded […]