United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DENISE J. CASPER, District Judge.
Plaintiff Patrick Joyce ("Joyce") brings this action against his former employer, The Upper Crust, LLC. ("Upper Crust"), its principal owner, Jordan Tobins ("Tobins") and JJB Hanson Management, Inc. ("JJB") (collectively, the "Defendants") alleging retaliation under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 215(a)(3), and Mass. Gen. L. c. 149, § 148A (the "Wage Act"), as well as Massachusetts common law claims and violation of his civil rights under Mass. Gen. L. c. 12, § 11I. D. 64. Tobins has moved for partial summary judgment on Joyce's retaliation claims. D. 87. Tobins has also moved to strike certain portions of the affidavit Joyce submitted in support of Joyce's opposition to Tobins's motion for partial summary judgment. D. 90 and 91. For the reasons discussed below, the Court DENIES Tobins's motion for partial summary judgment, D. 87, and ALLOWS IN PART and DENIES IN PART Tobins's motion to strike, D. 90 and 91.
II. Standard of Review
The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). "A fact is material if it carries with it the potential to affect the outcome of the suit under applicable law." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in her pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but "must, with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor." Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). "As a general rule, that requires the production of evidence that is significant[ly] probative.'" Id . (quoting Anderson, 477 U.S. at 249) (alteration in original). The Court "view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).
III. Procedural History
Joyce instituted this action against Tobins and Upper Crust on December 20, 2010. D. 1. On March 1, 2011, Upper Crust and Tobins moved to dismiss. D. 6. The Court subsequently allowed Joyce to amend the complaint - adding JJB as a defendant, additional factual allegations and a claim for intentional infliction of emotional distress against Tobins - and denied without prejudice the motion to dismiss. 8/9/11 docket entry. The Defendants then moved to dismiss the amended complaint, D. 21 and 23, and JJB moved for sanctions, D. 25. Joyce thereafter moved to file a second amended complaint ("SAC"), D. 26, and on July 25, 2012, the Court granted Joyce's motion. D. 36. The Court simultaneously granted, without prejudice, Defendants' motion to dismiss as to Joyce's Massachusetts retaliation claim only and denied JJB's motion for sanctions. Id.
Upper Crust and JJB filed a Suggestion of Bankruptcy on October 4, 2012. D. 56. On October 16, 2012, the Court administratively closed the case as to all Defendants without prejudice to either party moving to restore the action upon final determination of bankruptcy proceedings. D. 57. On December 28, 2012, Joyce moved to reopen the case as to non-debtor co-defendant Tobins only, D. 58, and the Court subsequently granted the motion, D. 60. Thereafter, the Court considered Joyce's motion to dismiss Tobins's counterclaims, D. 45, which had not been resolved prior to the case being closed. On December 26, 2013, the Court denied Joyce's motion to dismiss. D. 73.
On June 6, 2013, Joyce filed a third amended complaint ("TAC") to add a retaliation claim under the Wage Act, Mass. Gen. L. c. 149 § 148A. D. 64. In his TAC, Joyce alleges retaliation under the FLSA, 29 U.S.C. § 215(a)(3) (Count I), retaliation under Mass. Gen. L. c. 149, § 148A, (Count II), violation of his civil rights under Mass. Gen. L. c. 12, § 11I (Count III), defamation (Count IV) and intentional infliction of emotional distress (Count V). Id . Tobins has now moved for partial summary judgment as to Joyce's retaliation claims only. D. 87. Tobins also moved to strike certain portions of the affidavit Joyce submitted in support of his opposition to Tobins's motion. D. 90 and 91. The Court heard argument on Tobins's pending motions and took the matters under advisement. D. 106.
IV. Factual Background
The following facts are as described in Joyce's statement of material facts, D. 85. Tobins did not file a statement of material facts in support of his motion for partial summary judgment.
Upper Crust is a limited liability corporation, operating multiple pizzerias in Massachusetts. D. 85 ¶ 2. At all relevant times, Tobins was an owner of Upper Crust. Id . ¶ 3. Joyce began working for Upper Crust in 2003 as a counter person in the Brookline location. Id . ¶ 5. In 2007, Joyce was promoted to Operations Manager, a position that included "overseeing the kitchen managers and front of the house managers" at six locations across eastern Massachusetts. Id . ¶ 7. In his role as Operations Manager, Joyce had regular contact with Upper Crust owners and upper-level managers, including Tobins. Id . ¶ 8.
In 2009, the U.S. Department of Labor ("DOL") started an investigation into Upper Crust's wage and hour practices, specifically for unpaid overtime. Id . ¶ 9. In July 2009, as a result of the investigation, the DOL ordered Upper Crust to pay $341, 545.53 in back wages to current and former employees. Id . Following these payments, in August 2009, Tobins attended a meeting with other Upper Crust owners and managers and told employees that they would have to pay the money back to the company if they wanted to keep their jobs. Id . ¶ 10. Upset about this requirement to remit back pay, the employees complained to Upper Crust store managers, including Joyce. Id . ¶ 12. Joyce then brought the employees concerns to the attention of owner Brendan Higgins ("Higgins"), General Manager ("GM") Barry Proctor ("Proctor") and Chief Financial Officer ("CFO") David Marcus ("Marcus"), notifying them that the employees were very distressed about this ultimatum and that they were becoming uncooperative as a result. Id . ¶ 16. Joyce also told Higgins and Marcus that he was concerned that such a requirement was illegal. Id . In response, Joyce was simply told to fire any employees who were uncooperative. Id . ¶ 17. Joyce also spoke with Upper Crust manager Luciano Botelho ("Botelho") about Tobins's requirement that the employees return their back wages and told Botelho that he was planning to notify the DOL investigator. Id . ¶ 13, 14. Botelho was an Upper Crust kitchen manager who Tobins had ordered to tell Upper Crust's Brazilian workers about the requirement to remit their back pay. Id . ¶ 11. In January 2010, Joyce called the DOL on his company cell phone and reported Upper Crust's remittance policy. Id . ¶¶ 18, 29. The DOL subsequently undertook a new investigation into the Upper Crust's practices and notified Tobins of the investigation soon afterward. Id . ¶ 18. Joyce also informed Botelho that he had contacted DOL. Id . ¶ 15.
After Joyce's internal and external complaints, the behavior of Upper Crust's ownership and upper-level management towards Joyce changed precipitously. Id . ¶ 19. The owners told Joyce that he was not working hard enough and began requiring him to clock in and out every day even though salaried employees were not typically required to clock in and out. Id . ¶ 20. Tobins and the other owners also called Joyce into a "special meeting" in March 2010 where they critiqued his job performance and told him that he was not doing well. Id . ¶ 21. Joyce did not believe that his work quality had deteriorated and he was not aware that any Upper Crust manager had ever complained about his work. Id . In April 2010, owners Josh Huggard and Tobins called Joyce and yelled at him about a water leak in the Brookline location, despite the fact that the owners had been aware of the leak and were actively engaged in a dispute with the building's management company about the cost of the repairs. Id . ¶¶ 22, 23. Although Huggard and Tobins knew that the issue was out of Joyce's control, they called him to yell at him about the problem when they knew that he was away planning his wedding. Id . ¶ 23. The ...