United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
30, 2014, Cheryl Forziati sued defendants Gray Box Consultant
d/b/a Wicked Fast Marketing ("Gray Box"), Adam
James Nelson, and Phillip Eduardo Grasso. Forziati alleged
that defendants failed to pay her $11, 172.76 in wages in
violation of: (1) the Fair Labor Standards Act, 29 U.S.C.
§§201 et seq. ("FLSA"); and (2)
Massachusetts General Laws chapter 149, section 148 (the
"Wage Act") . Gray Box and Nelson did not respond
to the complaint. Forziati has requested that defaults enter
against Gray Box and Nelson.
has moved for summary judgment on both counts. He argues
that: (1) he is not an "employer" under the FLSA
because he did not supervise Forziati or have access to Gray
Box payroll or bank accounts; and (2) he is not liable under
the Wage Act because he had no role in Gray Box's
financial policy. Forziati also moved for summary judgment,
arguing that Grasso is liable because he was an officer and
partial owner of Gray Box; was sufficiently involved in Gray
Box to claim non-passive income on his tax returns; secured
financing for Gray Box from his mother; made admissions of
liability; and made inconsistent statements under oath.
motions were referred to Magistrate Judge Marianne Bowler. In
her June 30, 2016 Report and Recommendation, the Magistrate
Judge recommended allowing Grasso's motion and denying
Forziati's motion. On July 14, 2016, Forziati filed an
objection to the Report and Recommendation. On July 28, 2016,
Grasso replied to Forziati's objection.
court has considered the Magistrate Judge's Report and
Recommendation and the submissions of the parties on the two
motions and Forziati's Objection. This court has reviewed
de novo the questions of law and the issues to which
Forziati has objected. See Fed.R.Civ.P. 27(c). The
court finds the Report and Recommendation to be thorough,
thoughtful, and persuasive. The Report and Recommendation is,
therefore, being adopted.
summary, the test for an "employer" under the FLSA
is an "economic reality" test that considers
"the totality of the individual's level of
involvement with the corporation's day-today operations,
as well as their direct participation in creating or adopting
the unlawful pay practices." Manning v. Boston Med.
Ctr. Corp., 725 F.3d 34, 47 (1st Cir. 2013). The case
law emphasizes "ownership and financial control . . .
because these factors suggest a strong degree of authority
over the corporation's finances and, as a corollary, the
ability to 'caus[e] the corporation to undercompensate
employees and to prefer the payment of other obligations
and/or the retention of profits.'" Id. at
48 (quoting in Baystate Alternative Staffing, Inc. v.
Herman, 163 F.3d 668, 678 (1st Cir. 1998)). Similarly, a
"manager" under the Wage Act is "someone who
controls, directs, and participates to a substantial degree
in formulating and determining policy of a corporation."
Wiedmann v. The Bradford Grp., Inc., 444 Mass. 698,
Magistrate Judge applied the proper standard to decide each
of the motions for summary judgment. See Report and
Recommendation at 2-4 . She implicitly found that no material
facts are in dispute and any reasonable factfinder would
conclude that Grasso exercised no control over Graybox, its
payroll, its policy, or its employees. See id. at
8-9, 18-19, 21-22. Forziati has not satisfied her burden of
presenting countervailing evidence of material disputed
facts. See Santiago-Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 52 (1st Cir. 2000) ("Once the
moving party has properly supported [its] motion for summary
judgment, the burden shifts to the nonmoving party, with
respect to each issue on which [it] has the burden of proof,
to demonstrate that a trier of fact reasonably could find in
[its] favor."). Forziati's proffered disputed facts
concerning Grasso's tax returns, involvement in securing
a loan from his mother, and prior statements, are not
material to the dispositive question of Grasso's status
under the FLSA or the Wage Act. Accordingly, Grasso's
Motion for Summary Judgment is being allowed, and
Forziati's Motion for Summary Judgment is being denied.
of the foregoing, it is hereby ORDERED that:
attached Magistrate Judge's Report and Recommendation
(Docket No. 55) is ADOPTED and INCORPORATED pursuant to 28
the reasons stated in the Report and Recommendation, a.
Forziati's Motion for Summary ...