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Tam v. Federal Management Co., Inc.

Superior Court of Massachusetts, Suffolk, Business Litigation Session

May 24, 2018

SIEW-MEY TAM et al.[1]


          Mitchell H. Kaplan, Justice of the Superior Court

         The plaintiff, Siew-Mey Tam, filed this action against the defendants, Federal Management Co., Inc. (Federal Management), Richard Henken, David Flad, and Peter Lewis, after the defendants terminated her as a property manager at an apartment complex that Federal Management managed. Tam claims in Count I of her complaint that Federal Management misclassified her as an employee exempt from the overtime requirements of G.L.c. 151, § 1A. She demands overtime pay for all hours that she alleges she worked in excess of forty hours each week. In Count II, Tam claims that the defendants failed to pay her timely wages under G.L.c. 149, § 148, because they wrongfully failed to pay her any overtime pay.

         The case is presently before the court on the defendants’ motion for summary judgment and the plaintiffs’ motion for partial summary judgment on the only remaining counts in this case, Counts I and II. On May 4, 2018, the court heard oral arguments on the motions. For the following reasons, the defendants’ motion for summary judgment is ALLOWED and the plaintiffs’ motion for partial summary judgment is DENIED.


         Before considering whether the summary judgment record reveals any disputed, material issues of fact, the court must address the question of what materials are properly part of the summary judgment record. Tam was deposed on May 26, 2016.[3] On April 12, 2017, defendants served this motion for summary judgment by electronic mail on Tam’s counsel, Attorney Frederick T. Golder. On May 11, 2017, Attorney Golder served defendants with Tam’s own cross motion for partial summary judgment and her opposition to defendants’ motion for summary judgment. In support of her motion and opposition, he attached an affidavit signed by Tam, dated May 8, 2017, that contradicted much of Tam’s deposition testimony. Additionally, on May 11, 2017, Attorney Golder served a thirty-two-page deposition errata sheet relating to Tam’s May 26, 2016 deposition. According to the errata sheet, Tam signed it on May 8, 2017-almost one year after she was deposed and obviously in response to the defendant’s motion for summary judgment. In the errata sheet, Tam makes numerous changes to her deposition testimony claiming, among other things, that she was confused during the deposition or that defendants’ attorney was attempting to put "words in my mouth." Defendants note that through the errata sheet, Tam attempts to reverse unequivocal answers from "yes" or "yeah" to "no," and vice versa, more than sixty times. See Defendants’ Reply Memorandum at 3.

         As this court explained at the May 4, 2018 hearing, the court will not consider Tam’s May 8, 2017 affidavit, to the extent it contradicts plain statements affirmatively made by Tam in her deposition transcript, or the errata sheet in ruling on the motions for summary judgment. See O’Brien v. Analog Devices, Inc., 34 Mass.App.Ct. 905, 906 (1993) (recognizing that "a party cannot create a disputed issue of fact by the expedient of contradicting by affidavit statements previously made under oath at a deposition"). See also Smaland Beach Ass’n, Inc. v. Genova, 461 Mass. 214, 227-30 (2012) (Smaland) ("While substantive changes to errata sheets are permitted under Rule 30(e), we caution deponents and attorneys to invoke this privilege sparingly. The errata sheet is intended as a tool to correct mistakes in deposition testimony or subsequent transcription. It is not to be used as a mechanism to inject additional facts into the testimony of a single deponent ..."). In Smaland, the Supreme Judicial Court (SJC) adopted a more expansive use of the errata sheet under Mass.R.Civ.P. 30(e) than some Federal Courts permit under the analogous Federal rule; however, it also cautioned that an errata sheet ought not be used in a manner similar to a "sham" affidavit filed in opposition to a motion for summary judgment: "conflict between postdeposition affidavit and deposition testimony may not be used to create disputed issue of fact to defeat summary judgment." Id. at 229 n.24, citing Lyons v. Nutt, 436 Mass. 244, 249 (2002). Moreover, in Smaland, the SJC also required "that any submitted changes comply with the procedural requirements of Rule 30(e)." Id. at 230. Rule 30(e) has explicit time limits for the submission of errata sheets: "If the deposition transcript is not signed by the witness within 30 days of its submission to him, the officer shall sign it and state on the record the fact of the waiver ..." Tam’s errata sheet was served almost a year late. In determining whether disputed issues of fact exist in the summary judgment record of this case, the court will not consider the errata sheet or Tam’s affidavit to the extent either contradict unequivocal assertions in Tam’s deposition transcript.


         Subject to the restriction explained above, the material facts revealed by the summary judgment record, viewed in the light most favorable to Tam, are as follows.

         Federal Management is a property management company located in Braintree, Massachusetts. It manages residential, commercial, and retail properties and provides building operations, financial administration, leasing, and regulatory compliance services. Among the properties managed by Federal Management are subsidized housing projects-one such project is Mason Place.

         From May 23, 2005 to April 18, 2012, Tam was the property manager at Mason Place, a 127-unit, low-income apartment building in downtown Boston, Massachusetts. Mason Place had an operating budget of more than $3 million. Federal Management treated Tam as a salaried, overtime exempt employee. She was paid a salary substantially in excess of $455 per week at all relevant times and generally received the same weekly fixed salary regardless of the number of hours she worked each week. Her work hours varied from week to week.

         During Tam’s employment with Federal Management, she worked with two or more additional full-time employees, as well as part-time employees: a full-time maintenance supervisor, a full-time janitor, a part-time resident service coordinator, and a part-time administrative assistant. As Mason Place’s property manager, Tam’s job duties included: overseeing all day to day operations of the 127-unit property, preparing budgets, overseeing vendor relations, and ensuring the financial and physical health of the property. Tam’s day to day operations at Mason Place consisted of overseeing maintenance requests and repairs, communicating with maintenance staff, assisting and monitoring contractors, and maintaining a security presence at the building. She was also responsible for rent collection, making sure the apartments were fully occupied, assisting with apartment leases and resident paperwork, and complying with government certifications.

         In addition to this action, Tam also filed a discrimination case against the same defendants:[4] Suffolk CA No. 15-1131A. On April 6, 2016, Tam signed responses to defendants’ first set of interrogatories in that action. Interrogatory No. 2 asked Tam to: "Describe all of your job duties and responsibilities at Federal Management throughout your employment with Federal Management. If your duties and/or responsibilities changed over time, please describe the changes and the dates on which the changes occurred." Tam responded with a list of detailed duties including: financial (e.g., creating and adhering to property budgets; maintaining positive cash flow; preparing monthly budget reports; maintaining accurate resident and property records; approving purchase orders for goods and services; and overseeing security deposits); resident relations (e.g., handling resident complaints and concerns; monitoring service requests; and physical inspections of units); marketing (e.g., preparing marketing plan; greeting prospective residents; answering routine calls; reviewing and approving all applications for residency; and complying with federal regulations); supervisory (e.g., supervising and evaluating all site staff; completing annual reviews; interviewing new hires; auditing leasing activities; and conducting staff meetings); and general and administrative duties (e.g., conducting unit inspections; overseeing capital improvement projects; and general office duties).[5] At her May 26, 2016 deposition, Tam was asked if this was an accurate description of her job duties. She was given an opportunity to cross out any part of her answer to Interrogatory No. 2 that she maintained had not been part of her job at Mason Place. She struck that part of the answer that referenced hiring, firing, and disciplining of all site staff. She expressly confirmed that the balance of this interrogatory answer accurately reflected the work she did as Property Manager at Mason Place.

         Each year, Tam received written performance reviews. Her supervisor evaluated her in the following categories: job knowledge, cost consciousness, customer service, problem solving, managing people, communications, leadership, judgment, and dependability. Tam also conducted written performance reviews of Mason Place staff. She rated them in various job-related areas, provided comments, and gave the staff individual goals for the upcoming year.

         From 2010 to April 2012, Tam reported to John Desjardins, a senior property manager for Federal Management. As a senior manager, Desjardins was responsible for overseeing five separate properties, one of which was Mason Place. He split his time among the five properties that he supervised. Desjardins did not have an office at Mason Place and visited the property about once a week, or ...

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