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Tam v. Federal Management Co., Inc.

Superior Court of Massachusetts, Suffolk, Business Litigation Session

July 21, 2017

Siew-Mey Tam et al. [1]
Federal Management Co., Inc. [2] et al. [3]

          Filed July 26, 2017


          Mitchell H. Kaplan, Justice

         Plaintiffs Siew-Mey Tam and Mary Jane Raymond were formerly employed by Federal Management Co., Inc. (FMC) as property managers. Following the termination of their employment, they brought this action against FMC, Richard Henken, David Flad, and Peter Lewis[4] alleging 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 dismissing the claims asserted against them by 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 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 classified and 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, another FMC property manager who worked at a different property and had also been terminated, filed a complaint in Superior Court alleging violations of G.L.c. 151, § 1A, the statute governing overtime pay. She brought her claim on behalf of herself and all similarly situated FMC property managers. More than a year later, the Court allowed a motion to substitute Tam's complaint with another complaint. The substitute complaint added Raymond as a named plaintiff. It was pled fifteen counts: seven counts asserted claims on behalf of Tam and a putative class of similarly situated plaintiffs and eight counts were individual claims asserted by Raymond. In response, the defendants filed a motion to dismiss the complaint, which was allowed 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 claims are 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 the pending motion, FMC moves for summary judgment on these remaining Raymond claims.


         Count 1 of the complaint is time barred. When this action was 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 of limitations period was tolled; neither has 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 this argument Raymond relies upon Cruz v. Maypa, 773 F.3d 138 (4th Cir. 2014), a decision decided under then Fair Labor Standards Act (FLSA). That case is clearly inapposite. In Cruz, on facts remarkably different than those alleged in this case, [9] the Court 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 146-47. Here, by contrast, Raymond admits that FMC sent her the notice explaining the employees' statutory rights under the Wage Act for her to post in an appropriate location in Weldon House. She then posted the notice herself on the first floor of the building next to the employee time clock--a logical place to post a notice intended to make employees aware of their rights under the Wage Act. Manifestly, Raymond cannot maintain that she lacked notice of her rights 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 record shows 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. Since Raymond possessed knowledge of all the relevant facts, she cannot now claim that FMC engaged in fraudulent concealment. See Crocker v. Townsend Oil Co., 464 Mass. 1, 9, 979 N.E.2d 1077 (2012) (no fraudulent concealment where employer did not actively conceal or misrepresent the circumstances of plaintiff's' employment, and the facts surrounding the nature of the employment relationship were known to the parties at all relevant times); Stetson v. French, 321 Mass. 195, 198, 72 N.E.2d 410 (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., KAVITA2004 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., KAVITA2007 WL 2729187, at *3 (N.D.Cal. Sept. 18, 2007) (same). Accordingly, count 1 is time barred.[11]

         Count IX, Raymond's timely wage payment claim under G.L.c. 149, § 148, must likewise be dismissed because it is derivative of her 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 this argument, Raymond relies on Crocker v. Townsend Oil Co., decision in which the 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. Crocker is inapposite. In Crocker, the plaintiffs were allegedly mislabeled as independent contractors and were seeking unpaid regular and overtime 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, Raymond was compensated for all the hours she worked, even those over forty hours per workweek, unless FMC misclassified her. However, Raymond's claim for misclassification is time barred. Raymond therefore has no unpaid work time recoverable under ...

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