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Wage Act plaintiff barred from pursuing retaliation claim

‘Grumbling’ over pay, hours doesn’t trigger protections

field_daniel-webA building manager’s complaints about her salary and extended work hours were insufficient to place her employer on notice that she was asserting a right to overtime for purposes of triggering the protections of the Massachusetts Wage Act’s retaliation provision, a Superior Court judge has decided.

The plaintiff, Mary Jane Raymond, joined a putative class action for unpaid overtime against her former employer, Federal Management Co., alleging she and other property managers were misclassified as exempt employees under G.L.c. 151, §1A.

In addition, Raymond claimed the defendant violated the Wage Act’s retaliation provision, G.L.c. 149, §148, by terminating her after she complained about her working conditions, specifically her salary and the long hours she needed to work in order to perform her job responsibilities.

Judge Mitchell H. Kaplan, sitting in the Business Litigation Session, granted the employer’s motion for summary judgment on Raymond’s individual overtime and retaliation claims.

The judge first concluded Raymond’s overtime claims were time-barred. In dismissing the retaliation claim, he determined that Raymond’s expressed concerns were too generalized and informal to constitute activity protected by the Wage Act’s retaliation provision.

“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,” Kaplan wrote. “Raymond’s pay related grievances were far too general to constitute protected activity for purposes of her retaliation claim.”

The nine-page decision is Tam, et al. v. Federal Management Co., Inc., et al.

Jury issue?

The defendant employer was represented by Boston attorneys C. Max Perlman and Michael C. Birch. Perlman declined to comment due to unresolved issues remaining in the case.

The plaintiff was represented by Boston attorneys Frederick T. Golder and Philip Gordon. Golder also declined to comment.

But Springfield employment attorney Jeffrey S. Morneau said the plaintiff’s complaints about pay and hours raised a jury issue that should have gotten her past summary judgment.

“When the question is whether what the employee said was sufficient to put the employer on notice that an employee is asserting a right under the Wage Act, it doesn’t seem clear to me one way or the other,” the employee-side attorney said. “A jury should decide whether the words and circumstances surrounding the employee’s complaints were sufficient to put the employer on notice.”

On the other hand, Cambridge employment attorney Judy L. Polacheck lauded the judge for distinguishing between the general expressions of discontent by employees concerning the terms and conditions of their employment and dissatisfaction related to treatment that may violate wage and hour laws.

“It is an important distinction and one that allows the system to function without getting overwhelmed by retaliation complaints triggered by every expression of a desire for higher wages,” said Polacheck, who counsels companies on employment matters.

Daniel S. Field, an employer-side attorney in Boston, noted that there is little Massachusetts authority on the issue raised in Tam outside of the Supreme Judicial Court’s 2006 decision in Smith v. Winter Place.

In Winter Place, the court rejected a defense argument that §148A’s prohibition against retaliation covers only employees who make an “official” complaint about a wage and hour violation.

Field said Tam is consistent with federal authority and the few Superior Court decisions addressing the issue of what types of employee complaints trigger the protections of a wage and hour retaliation provision. He said those cases have not required an employee to say much to invoke the protection of the statute.

“If an employee says, ‘I think I’m entitled to overtime,’ that’s probably enough,” Field said. “[In Tam,] the employee said, ‘You’re not paying me enough’ and ‘I don’t like my schedule; I think I’m working too much.’ The employee didn’t say, ‘I think you owe me overtime.’”

Northborough attorney Shehzad Rajwani sees Tam as being consistent with Winter Place, though ultimately limited to its facts.

“It’s not enough to have general complaints about your salary and working conditions. You must complain that you were somehow deprived of the protections of the Wage Act, though you don’t have to actually say ‘Wage Act,’” said Rajwani, who represents both employees and management in employment matters.

Similarly, Needham employment attorney Jack Merrill said he read Tam as underscoring the importance of employees being specific in their complaints when it comes to assessing the viability of a retaliation claim.

“You don’t have to use Wage Act violation language, but you do have to specifically raise the question [of a violation]. You have to complain about not getting overtime, not getting minimum wage, or not getting paid the right number of hours,” Merrill said. “This decision wasn’t surprising because it doesn’t look like the employee made any such complaints.”

“The employee said, ‘You’re not paying me enough’ and ‘I don’t like my schedule; I think I’m working too much.’ The employee didn’t say, ‘I think you owe me overtime.’” — Daniel S. Field

Retaliation claim

The defendant is in the business of managing commercial, retail and residential properties. In 1990, the defendant hired Raymond as a property manager for a 105-unit, low-income apartment building in Greenfield. The defendant classified Raymond as a salaried, exempt employee.

The defendant terminated Raymond in March 2011. In June 2013, another property manager terminated by the defendant, Siew-Mey Tam, sued in Suffolk Superior Court. Tam’s lawsuit, filed on behalf of herself and similarly situated property managers, alleged the defendant violated the Wage Act’s overtime provisions.

A substitute complaint filed a year later added Raymond as a named plaintiff. The substitute complaint asserted seven claims on behalf of the putative class and eight individual claims on behalf of Raymond.

In 2015, the defendant successfully moved to dismiss most of the class claims as well as most of Raymond’s individual claims with the exception of her overtime and wage claims under G.L.c. 151, §1A, and G.L.c. 149, §148, as well as her retaliation claim brought under G.L.c. 149, §148A.

The defendant moved for summary judgment on Raymond’s remaining individual claims.

‘Abstract grumblings’ not enough

In addressing the defendant’s motion for summary judgment, Kaplan first found that Raymond’s overtime claim was indeed filed outside the applicable statute of limitations.

The judge noted that Raymond’s claim accrued on the date of her termination in March 2011, before the state Legislature amended the Wage Act to increase the applicable statute of limitations from two to three years. Applying the two-year statute of limitations, Kaplan concluded that Raymond’s overtime claim expired in March 2013, three months before Tam filed the original action.

Kaplan next turned to Raymond’s retaliation claim.

Chapter 149, §148A provides “[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.”

The statute explicitly exposes to liability “[a]ny employer who discharges or in any other manner discriminates against any employee because such employee has made a complaint to the attorney general or any other person.”

Raymond alleged she was fired in retaliation for exercising her right to be paid overtime. She predicated her retaliation claim on complaints she made to the defendant about her salary and the lack of support in performing her duties at the apartment building.

According to Raymond, her complaints to management were evidence that she engaged in protected activity under §148A.

Kaplan found a dearth of Massachusetts appellate authority addressing the issue of the types of employee complaints that qualify for protection under §148A. However, the judge found guidance in federal decisions interpreting the retaliation provision of the Fair Labor Standards Act.

He noted that federal courts had concluded that, to qualify as protected activity under the FLSA, an employee’s complaint must be sufficiently clear and detailed for a reasonable employer to understand it as an assertion of rights protected by the statute.

“An employee does not have to invoke the FLSA explicitly,” Kaplan wrote. “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.”

With the federal precedent in mind, Kaplan turned to the case at hand. He noted that the evidence showed that, prior to her termination, Raymond repeatedly complained about the number of hours she had to work in order to accomplish her duties. The plaintiff also pressed for pay raises or additional staff to address her concerns.

On the other hand, Kaplan pointed out that there was no evidence that Raymond ever “explicitly or implicitly” communicated to the defendant any suggestion that she thought the employer was violating the Wage Act’s overtime provision by not giving her a raise or more staff to do the work.

In granting the defendant summary judgment on the plaintiff’s retaliation claim, the judge concluded Raymond’s complaints were too general for purposes of §148A.

“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 the very least, communicate to [the defendant] a belief that it was potentially engaging in unlawful activities in connection with her pay,” Kaplan wrote. “The summary judgment record contains no evidence that she ever did that.”

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