Heard: April 6, 2017.
action commenced in the Superior Court Department on December
motion to dismiss was heard by Rosalind Henson Miller, J.
L. Nevins for the plaintiff.
Jeffrey S. Beeler for the defendants.
Blake, & Lemire, JJ.
Susan Gallagher, a personal care attendant (PCA) who provided
in-home services for an elderly man (consumer), brought an
action in Superior Court against Cerebral Palsy of
Massachusetts, Inc.; its president, Donald Uvanitte; and its
treasurer, David Sprague (collectively, CPM), alleging that
CPM was her employer and that it failed to pay her for her
overtime hours, including failing to do so at an overtime
rate. A judge granted CPM's motion to dismiss on the
ground that, pursuant to the MassHealth regulations
(regulations) governing Gallagher's work arrangement, she
was employed by the consumer, not CPM. Gallagher appeals from
the judgment, and we affirm.
Although there were exhibits attached to both CPM's
motion to dismiss and Gallagher's opposition, the judge
ostensibly declined to treat the motion as one for summary
judgment, and she excluded the additional material from
consideration. See Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974).
But in a footnote explicitly listing the excluded exhibits,
the judge did not identify as having been excluded one of
CPM's submissions: excerpts from a contract it executed
with the Executive Office of Health and Human Services. That
document establishes the applicability of certain of the
regulations, including CPM's role within that regulatory
framework as a "fiscal intermediary, " i.e., an
entity that serves in a facilitative role with regard to
payroll and related matters. 130 Code Mass. Regs. §
422.402 (2006). These facts were not reflected in the
complaint, but the judge cited them as dispositive. By
relying on facts outside of the complaint, the judge
essentially rendered a decision in the nature of summary
judgment. Doucette v. Massachusetts Parole Bd., 8 6
Mass.App.Ct. 531, 533-534 (2014) .
review the decision as such, including taking into
consideration the other excluded material. We may do so
without risk of procedural unfairness for two reasons. First,
both parties in their briefs to this court addressed the
implications of the facts reflected in the materials, compare
Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43,
45 n.4 (2004), and Gallagher's brief, in particular,
argued that a summary judgment standard should have been
applied. Second, as we will explain further, we agree with
the judge's conclusion that CPM was entitled to judgment
as a matter of law; this result could not be overcome with
further evidence. "Accordingly, we review the
judge's dismissal of this action as though [she] had
granted a motion for summary judgment." Cousineau v.
Laramee, 388 Mass. 859, 860 n.2 (1983).
review a grant of summary judgment de novo. Federal Natl.
Mort. Assn. v. Hendricks, 463 Mass. 635, 637
(2012) . In doing so, we consider the pleadings and other
record evidence, viewing them in the light most favorable to
Gallagher and drawing all reasonable inferences in her favor,
to determine whether, on the undisputed facts, CPM is
entitled to judgment as a matter of law. Ibid.
June, 2006, Gallagher began working as a PCA, providing
in-home care to the consumer, who received these services in
connection with his MassHealth benefits. Her work was
facilitated, in part, by CPM. Pursuant to the regulations
governing PCA benefits for MassHealth members, CPM acted as a
fiscal intermediary. CPM's duties included forwarding
notice of preapprovals, which were issued by MassHealth, for
the number of hours of Gallagher's weekly work for which
wages would be covered by MassHealth, issuing her paychecks,
and making payments into the unemployment insurance system.
September, 2006, shortly after beginning her work, Gallagher
signed a form given to her by CPM, acknowledging that the
consumer was her employer. At approximately the same time,
she signed two other forms given to her by CPM -- a W-4 form
and an 1-9 form. Since that time, CPM has issued her annual
W-2 forms. Although these tax form interactions are commonly
conducted with an employer, here, the W-4 and 1-9 forms
identified the consumer as the employer, and the single W-2
in the record states that it was issued by CPM "FBO [the
consumer], " i.e., for the benefit of the consumer.
Additionally, CPM's role with respect to these tax forms
was consistent with its duties under the regulations as a
fiscal intermediary. See note 9, infra.
the years she worked as a PCA, Gallagher sometimes worked
more than forty hours per week, but she was not paid for any
hours worked beyond forty per week. On December 10, 2015,
Gallagher filed a verified complaint against CPM, including
two of its officers, alleging violations of the Massachusetts
Wage Act, see G. L. c. 149, § 148, and the Massachusetts
overtime statute, see G. L. c. 151, § 1A. CPM responded
with a motion to dismiss, which Gallagher opposed. As stated,
both parties attached exhibits to their memoranda. On June
27, 2016, after a hearing, the judge granted CPM's motion
on the ground that Gallagher was employed by the consumer,
not CPM. Gallagher appeals.