Tam, et al. v. Federal Management Co., Inc., et al. (Lawyers Weekly No. 12-093-17)





  1. 13-02347-BLS1

SIEW-MEY TAM & another1

1 Mary Jane Raymond

2 d/b/a The Schochet Companies

3 Richard Henken, Peter Lewis, and David Flad

4 The individual defendants are alleged to be statutorily liable for FMC’sWage Act violations.

5 The defendants have also filed a separate motion for summary judgment on the claims asserted by Tam.  That motion remains pendingand is not addressed in this Memorandum of Decision.






Plaintiffs Siew-Mey Tam and Mary Jane Raymond were formerly employed by Federal Management Co., Inc. (FMC) as property managers.  Following the termination oftheiremployment, they brought this action against FMC, Richard Henken, David Flad, and Peter Lewis4alleging that they were misclassified as exempt employees under G.L. c. 151, § 1A and FMC failed to pay them for overtime hours worked.  The case is presently before the Court on the defendants’ motion for summary judgment dismissingthe claims assertedagainst themby Raymond.5 For the following reasons, the motion is ALLOWED.


The following facts are undisputed.

FMC is a professional management company located in Braintree, Massachusetts.  The 2


company manages commercial, retail, and residential properties, including low and moderate subsidized housing projects.  One of the properties FMC manages is Weldon House, a 105-unit, low income apartment building in Greenfield, Massachusetts.

From February 14, 1990 to March 3, 2011, Raymond worked at Weldon House as a property manager.  FMC classifiedand paid Raymond as a salaried, exempt employee.  She received a fixed weekly salary regardless of the number of hours that she worked during any week.FMC terminated Raymond’s employment on March 3, 2011.

In June 2013, Tam, anotherFMCproperty manager whoworked at a different property andhad also beenterminated, filed a complaint in Superior Court alleging violationsof G. L. c. 151, §1A, the statute governing overtimepay. She brought her claimon behalf of herself and all similarly situated FMC property managers.  More than a year later, the Court allowed a motion to substitute Tam’s complaintwith another complaint.  The substitute complaint added Raymond as anamedplaintiff. Itwaspledfifteen counts:seven counts asserted claims on behalf ofTam and a putative class of similarly situated plaintiffsand eight counts were individual claims asserted by Raymond.

In response, the defendants fileda motion to dismiss the complaint, which wasallowed in part and denied in part,in June 2015.  The Court granted the motion as to Counts III-VIII and X-XIV but denied it as to Counts I, II, IX, and XV.  Following that order, Raymond’s remaining claimsare her individual claims for overtime and wages under G. L. c. 151, § 1A and G. L. c. 149, § 148 (Counts I and IX) and a retaliation claim under G. L. c. 149, § 148 (Count XV).6 In

6 In December 2015, the Court(Brieger, J.)allowed a motion to certify a class of current and formerFMCemployees with Tam and Raymond as class representatives.  Following discovery, the defendants moved to decertify the class.  In a Memorandum and Order dated November 30, 2016, the Court (Liebensparger, J.) allowed that motion.  The Court found that (i) 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;”and (ii) Raymond was not an adequate class 3


representative because her claims are “likely barred by the applicable two year statute of limitations.”  The Court also questioned whether the numerosity prong of Rule 23 could be satisfied because of the potential impact of the period of limitations on many members of the putative class.

7 Pursuant to Chapter 292 of the Acts of 2014, G. L. c. 151, § 20A was amended to increase the statute of limitations for claims under G. L. c. 151, § 1A from two to three years,effective November 18, 2014. This subsequent amendment has no effect on claims that were untimely when this action was filed in 2013.

8 The court need not address the question of whether Raymond’s individual claims,first asserted in the substituted complaint,relate back to the date that Tam originally filed her complaintor the statute was tolled as to all her claims by the filing of a putative class action complaint.

9 Cruzinvolved claims asserted by an immigrant from the Phillipines who was lured to the United States to work as a servant for the defendants who allegedly confined her as a virtual prisoner in their home requiring her to

the pending motion, FMC moves for summary judgment on these remaining Raymond claims.


Count Iof the complaintis time barred.  Whenthis actionwas filed, the statute of limitations for an overtime claim was two years.  See G. L. c. 151, § 20A.7 FMC terminated Raymond’s employment on March 3, 2011.  Accordingly, her claims expired at the latest, on March 3, 2013, which is three months before Tam filed the present action in June 2013.8

In her opposition, Raymond makes two arguments in support of her contention that the statute oflimitations period was tolled;neitherhas merit.  Raymond first argues that the statute of limitations was tolled because FMC failed to post a notice in her office informing her of her rights under the Wage Act.  See 454 Code Mass. Regs. § 27.07(1) (providing that “[e]very employer shall post, in a place conspicuous to employees, a workplace notice issued by the Commonwealth containing the basic minimum wage rates and such other provisions of M.G.L. c. 151 and 454 CMR 27.00 as the law or the Director [of the Department of Labor Standards] may require”).  In support of thisargument, Raymond relies uponCruz v. Maypa, 773 F.3d 138 (4th Cir. 2014), a decision decided under the Fair Labor Standards Act (FLSA).  That caseisclearlyinapposite.  In Cruz, on facts remarkably different than those alleged in this case,9 the Court 4


work 17 hours a day 7 days a week at wageswellbelow the minimum wages required by law.

10 “[W]hen a defendant fraudulently conceals a cause of action from the knowledge of a plaintiff, the statute of limitations is tolled under G. L. c. 260, § 12, for the period prior to the plaintiffs’ discovery of the cause of action.”  Crocker v. Townsend Oil Co., 464 Mass. 1, 8-9 (2012), quoting Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337, 375 (2008).


allowed equitable tolling of the statute of limitations under the FLSA where the employer failed to post any required workplace notices and the employee was not otherwise aware of her rights under the statute.  Id. at 146-147.  Here, by contrast, Raymond admits that FMC sentherthe notice explainingthe employees’statutory rights under the Wage Actfor hertopost in an appropriate location inWeldon House.  She then posted the notice herselfon the first floor of thebuilding next to the employee time clock—a logical place to post a notice intended to make employees aware of their rightsunder the Wage Act.  Manifestly, Raymond cannot maintain that she lacked notice of herrights under the law or was otherwise misled about her rights due to a failure to post the workplace notice.  Compare Cruz, id. at 147 (where the Court found that the plaintiff had no notice or knowledge whatsoever of her rights).

Raymond next argues that the statute of limitations was tolled because she was repeatedly told by FMC that she was a salaried employee and not entitled to overtime.  Raymond suggests that the statements were a form of fraudulent concealment that triggered tolling under G. L. c. 260, § 12.10 However, in this case, the recordshows that Raymond was well aware of all the facts that form the basis for her claim at the time she was terminated.  It is undisputed that she knew she was classified as exempt, she would not be paid overtime, and she received the same salary regardless of the hours she worked.  It is also undisputed that she knew how many hours she worked and the nature of her job duties.  SinceRaymond possessed knowledgeof all the relevant facts, she cannot now claim that FMC engaged in fraudulent concealment.  SeeCrocker v. Townsend Oil Co., 464 Mass. 1, 9 (2012) (no fraudulent concealment where employer did not actively conceal or misrepresent the circumstances of plaintiffs’ employment, and the facts 5


surrounding the nature of the employment relationship were known to the parties at all relevant times); Stetson v. French, 321 Mass. 195, 198 (1947) (“cause of action is not concealed from one who has knowledge of the facts that create it”).  As federal courts have noted, Raymond’s argument would effectively eliminate the statute of limitations in cases based on a misclassification of an employee.  See Jacobsen v. The Stop & Shop Supermarket Co.,2004 WL 1918795, at *3-4 (S.D.N.Y. Aug. 27, 2004) (“To hold that ‘a failure to disclose that an employee is entitled to overtime pay is sufficient to work an equitable toll would be tantamount to holding that the statute is tolled in all or substantially all cases seeking unpaid overtime.’”)and Prentice v. Fund for Pub. Interest Research, Inc., 2007 WL 2729187, at * 3 (N.D. Cal.Sept 18, 2007) (same). Accordingly, Count I is time barred.11

11 Because the claim is time barred, the Court does not reach defendants’ argument that Raymond was,as a matter of fact,properly classified as an exempt employee under G. L. c. 151, § 1A.

Count IX, Raymond’s timely wage payment claim under G. L. c. 149, § 148, must likewise be dismissed because it isderivative ofher overtime claim, i.e., her assertion that she was not paid overtime wages due to her.  Raymond maintains that the claim remains viable because she can still recover for the alleged unpaid overtime work at her straight time rate.  The Court disagrees.

In support of thisargument, Raymond relies on Crocker v. Townsend Oil Co., a decision in whichthe SJC held that although the two plaintiffs’ overtime claims were time barred, they could “still recover for unpaid overtime work at the regular rate under the Wage Act, subject to the three-year statute of limitations.” 464 Mass. at 7.  Crockeris inapposite.  In Crocker, the plaintiffs were allegedly mislabeled as independent contractors and were seeking unpaidregular andovertime wages that were purportedly owed to them as employees.  Id.at 2.  In this case Raymond was a salaried employee,classified as exempt by her employer.  In consequence, 6


Raymond was compensated for allthe hours she worked, even those over forty hours per workweek, unless FMC misclassified her. However, Raymond’s claim for misclassification is timebarred.Raymond therefore has no unpaid work time recoverable under the Wage Act.  See Goodrow v. Lane Bryant, Inc., 432 Mass. 165, 175 (2000) (“employee’s salary is considered to include ‘straight time’ for all hours worked, including the overtime hours”).

Raymond’s claim for retaliation (Count XV)is independent ofbothCountsI andIX and, therefore,does not fail simply because they do.Nevertheless, there is no evidence in the summary judgment recordthatcreatesa genuine factual dispute as to whether the defendants engaged in retaliation.  General Laws c. 149, § 148A provides that “[n]o employee shall be penalized by an employer in any way as a result of any action on the part of an employee to seek his or her rights under the wages and hours provisions of this chapter” and that employers may not “discharge[] or in any other manner discriminate[] against any employee because such employee has made a complaint to the attorney general or any other person[.]”  The purpose of this provision is “to encourage enforcement of the wage laws by protecting employees who complain about violations of the same.”  Smith v. Winter Place LLC, 447 Mass. 363, 368 (2006).  Pointing to complaints she made to FMC prior to her terminationconcerning the amount of her salary and alack of support, Raymond maintains that she was fired in retaliation for exercising her right to be paid overtime hours.  The court concludes that these complaints donot constituteevidence that Raymondengaged inanyactivity protected by Section148A.

There appearto be no Massachusetts appellate cases analyzing the types of complaints that qualify for protection under G. L. c. 149, § 148A.  However, federal decisions interpreting the retaliation provision of the FLSA provideguidance.12 To qualify as protected activity under

12 Section 215(a)(3) of the FLSAprohibits employers from discharg[ing] or in any other manner discriminat[ing] against any employee because such employee has filed any complaint or instituted or caused to be instituted any 7


proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee. 29 U.S.C.A. § 215(a)(3)

the FLSA, a complaint must be “sufficiently clear and detailed for a reasonable employer to understand it . . . as an assertion of rights protected by thestatute, and a call for their protection.”  Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1335(2011).An employee does not have toinvoke the FLSA explicitly.See E.E.O.C. v. Romeo Cmty.Sch., 976 F.2d 985, 989 (6th Cir. 1992) (an employee who communicated the substance of her allegations to the employer and stated her belief that the employer was “breaking some sort of law” engaged in protected activity); Rocksmore v. Hanson, 2015 U.S. Dist. LEXIS 23778, at *23-25 (D. Or. Feb. 24, 2015) (defendant not entitled to summary judgment because while plaintiff did not invoke FLSA when complaining to management, she suggested that the employer’s actions were possibly illegal).  Nonetheless, “abstract grumblings” about pay are insufficient; “there is a point at which an employee’s concerns and comments are too generalized and informal” to constitute a protected complaint. Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 44 (1st Cir. 1999) (internal quotes omitted); see also Lambert v. Ackerley, 180F.3d 997, 1007 (9th Cir. 1999) (“not all amorphous expressions ofdiscontent related to wages and hours constitute complaints filed within the meaning of § 215(a)(3)”).

In the present case, the record shows that for some timeprior to her termination Raymond repeatedly complained about the number of hours she had to work in order to accomplish her duties and asked for pay raises or assistance to address the issue.  There is no evidence that she ever explicitly or implicitly communicated toFMCany suggestion that she thought that FMC was violatingthe overtime provisions of the Wage Act, or any other law, by not giving her a raise or more staff to do thework.  Indeed, Raymond admits that until she spoke with her attorney in 2013, she “did not know that [she] should have been treated as a non-exempt employee and 8


should have been paid overtime.”  Raymond Aff. at ¶ 101.  While this court agrees with the federal court decisions applying FLSA that Raymond was not required explicitly to complain of a Wage Act violation to trigger Section 148A’s protections, she had to, at thevery least, communicate to FMC a belief that it was potentially engaging in unlawful activities in connection with her pay.  The summary judgment record contains no evidence that she ever did that.  Not every complaint by an employee that her salary was too low and she had to work too many hours to do her job is sufficient to place an employer on notice that an employee is asserting rights under the Wage Act.Raymond’spay related grievances were far too generalto constitute protected activity for purposes of her retaliation claim.  SeeAlvarado v. I.G.W.T. Delivery Sys., Inc., 410 F. Supp. 2d 1272, 1279(S.D. Fla. 2006) (letters asking for a raise not protectedactivity because “[t]he letters themselves d[id] not appear to clearly assert rights under the[FLSA] in that they make no specific mention of overtime pay or invoke the FLSA”); Jean-Joseph v. Walgreens, Inc., 2011 U.S. Dist. LEXIS 121906, at *17 (E.D.N.Y. Oct. 21, 2011) (plaintiff failed to allege that her complaint about back wages was framed in the terms of any violation of the FLSA).  9



For the foregoing reasons, the defendants’ motion for summary judgment is ALLOWED.In consequence, Raymond’s claims are dismissed.  Plaintiff Tam’s claims are the subject of a separate motion for summary judgment, as to which the parties will be submitting additional pleadings, and her claims are unaffected by this order.


Mitchell H.Kaplan

Justice of the Superior Court

Dated: July 21, 2017

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