United States District Court, D. Massachusetts
OPINION AND ORDER
A. O’Toole, Jr. United States District Judge.
complaint in this action alleges the following:
Costello worked at a Whole Foods Market in Jamaica Plain,
Massachusetts, from approximately June 2014 to October 2015.
He began there as a part-time employee making $10 an hour. At
the time of the relevant events, he was employed full-time,
being paid $13.54 an hour. He worked as part of a team in the
“prepared foods” department of the market.
Foods installed a burrito bar and a pizza station in
September 2015. These two new stations added more
responsibilities for the members of the prepared food team,
and Costello believed that he and his coworkers deserved to
be paid an additional $1 an hour as compensation for the
additional work. He drafted a petition that requested a $1
per hour raise for his entire team. He distributed this
petition to a number of his coworkers who, along with the
plaintiff himself, signed it. The plaintiff and his coworkers
presented the petition to their managers and posted it on an
employee bulletin board.
days after submitting the petition, Costello was called into
a meeting with a regional executive coordinator for Whole
Foods and Wanda Hernandez, the general manager of the Jamaica
Plain Whole Foods store. Costello was told he was being
investigated for statements that he purportedly made while
soliciting signatures for the petition. It was claimed that
another employee had complained that Costello had been
soliciting signatures “while on the clock.” A
week later, Costello’s employment was terminated for
“lying during an investigation.”
alleges that he did not lie during the investigation, but
rather was fired for his activity in seeking higher wages.
His complaint, originally filed in Suffolk Superior Court,
asserts four causes of action. Count I claims that he was
fired in retaliation for raising complaints about an
“oppressive and unreasonable wage” in violation
of the Massachusetts Minimum Fair Wage Law. See
M.G.L. ch. 151, §§ 1, 19. Count II claims that he
was fired in retaliation for raising complaints about the
defendants’ failure to have paid him wages earned in
violation of the Massachusetts Wage Act. See M.G.L.
ch. 149, § 148A. Counts III and IV allege breach of
contract and breach of the implied contractual covenant of
good faith and fair dealing. All four claims are asserted
against both Whole Foods and Hernandez individually. The
complaint seeks damages for lost wages and emotional
distress, subject to statutory trebling, as well as
attorneys’ fees and costs.
defendants removed the case to this Court, invoking diversity
of citizenship as the basis for jurisdiction. See 28
U.S.C. § 1332. Whole Foods is a Delaware corporation
with its principal place of business in Texas. Both Costello
and Hernandez are Massachusetts citizens, a circumstance that
would ordinarily preclude diversity jurisdiction, but Whole
Foods asserts that Hernandez was fraudulently joined for the
purpose of defeating federal jurisdiction and therefore
should be disregarded in assessing whether the conditions for
jurisdiction under § 1332 are met.
are two pending motions. The defendants have moved to dismiss
the complaint for failure to state a claim upon which relief
can be granted. See Fed. R. Civ. Pro. 12(b)(6). The
plaintiff has moved to remand the case to the state court,
arguing both the absence of complete diversity and the
insufficiency of the damages in light of the statutory
the necessary complete diversity of citizenship exists turns
on whether Hernandez has been fraudulently joined to defeat
jurisdiction under § 1332.
[I]t is generally recognized that, under the doctrine of
fraudulent joinder, removal is not defeated by the joinder of
a non-diverse defendant where there is no reasonable
possibility that the state’s highest court would find
that the complaint states a cause of action upon which relief
may be granted against the non-diverse defendant.
Universal Truck & Equip. Co. v. Southworth-Milton,
Inc., 765 F.3d 103, 108 (1st Cir. 2014). Thus,
determining whether the parties are diverse is similar to an
evaluation of the merits of the plaintiff’s claims
against the pertinent defendant. See, e.g.,
id. at 108 n.3 (citing Poulos v. Naas Foods,
Inc., 959 F.2d 69, 73 (7th Cir.1992) (“[T]he
federal court must engage in an act of prediction: is there
any reasonable possibility that a state court would rule
against the non-diverse defendant?”) (alteration in
original)); Polyplastics, Inc. v. Transconex, Inc.,
713 F.2d 875, 877 (1st Cir. 1983) (“[A] finding of
fraudulent joinder bears an implicit finding that the
plaintiff has failed to state a cause of action against the
fraudulently joined defendant . . . .”).
noted above, Counts I and II are both claims for retaliation.
Costello alleges that Whole Foods and Hernandez fired him in
retaliation for his complaining about rights protected by the
Massachusetts Minimum Fair Wage Law (“MFWL”) and
the Massachusetts Wage Act. Counts III and IV are common law
based contract claims.
Minimum Fair Wage Law
defendants argue that the Minimum Fair Wage Law has nothing
to do with the plaintiff’s grievance. At all times
during his employment, Costello was earning equal to or more
than $10 per hour. During his employment at Whole Foods, the
statutory minimum wage was first $8 (in 2014) and then $9 (in
2015). See M.G.L. ch. 151, § 1. Alternative
minimum wages for specific industries may be set by the
Director of the Department of Labor Standards, see
id. § 7, but there is no allegation that any such
rate was applicable to Costello.
the plaintiff argues that in addition to setting a minimum
wage, the statute also forbids payment of an
“oppressive and unreasonable wage.” Id.
§ 1. An “oppressive and unreasonable wage”
is broadly defined by statute to be “a wage which is
both less than the fair and reasonable value of the services
rendered and less than sufficient to meet the minimum cost of
living necessary for health.” Id. § 2.
plaintiff’s theory is that a wage rate higher than the
established minimum wage may nonetheless be “oppressive
and unreasonable” in particular circumstances. It
appears to be an entirely novel theory. Indeed, the plaintiff
has provided no case at all in which an employee’s
higher than minimum wage salary was found nonetheless to
violate the Minimum Fair Wage Law. Courts in previous cases
have analyzed the viability of claims under the MFWL by
referencing only the statutory minimum wage. See,
e.g., Huston v. FLS Language Ctrs., 18
F.Supp.3d 17, 23-24 (D. Mass. 2014); Dagan v. Jewish
Cmty. Hous. for the Elderly, 699 N.E.2d 840, 847 (Mass.
App. Ct. 1998).
appears ‘twas always thus, as an early case concerning
the MFWL from the Supreme Judicial Court shows. In
Robinson v. Pine Grove Cemetery Corp., the employee,
Ray Wilday, was, from 1947 to 1950, paid an annual salary of
$1, 200 at the rate of $100 per month. 162 N.E.2d 16, 17
(Mass. 1959). The MFWL had been first passed in 1947, and
then, like now, “declared it to be against public
policy to employ any person in an occupation at an oppressive
and unreasonable wage.” See id. Then, like
now, specific rates could be set by statute or by the
appropriate administrator. However, unlike now, from the initial
date of passage of the act until January 1, 1950, there was
no general minimum wage rate established. Rather, wage boards
recommended various minimum wages for particular industries.
No minimum wage had been recommended for Wilday’s
occupation. At the start of 1950, the first generally
applicable minimum wage of sixty-five cents per hour came
into effect. On these facts, the Supreme ...