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Tortolano v. Lemuel Shattuck Hospital

Appeals Court of Massachusetts, Middlesex

August 20, 2018

ANDREA M. TORTOLANO
v.
LEMUEL SHATTUCK HOSPITAL.

         Civil action commenced in the Superior Court Department on December 28, 2015. Motions to dismiss were heard by Elizabeth M. Fahey, J.

          Suzanne L. Herold for the plaintiff.

          Anne M. McLaughlin, Assistant Attorney General, for the defendant.

          Present: Green, C.J., Desmond, & Englander, JJ.

          ENGLANDER, J.

         In this case, we consider whether Andrea Tortolano, a State employee, can bring claims in the Superior Court against Lemuel Shattuck Hospital (hospital or defendant)[1]for breach of contract and for nonpayment of overtime wages in violation of G. L. c. 149, § 30B.[2] The motion judge (1) dismissed Tortolano's breach of contract claim on the ground that she failed to exhaust the grievance procedure set forth in the applicable collective bargaining agreement (CBA), and (2) dismissed the nonpayment of overtime wages claim on the ground that there is no private right of action for violations of § 30B. For the reasons that follow, we affirm.

         Background.

         We summarize the relevant facts as set forth in the amended complaint, reserving some details for further discussion. See Dartmouth v. Greater New Bedford Regional Vocational Technical High Sch. Dist., 461 Mass. 366, 368 (2012). On February 4, 2008, Tortolano starting working as a physician's assistant at the hospital. Her employment was governed by the CBA between the Commonwealth and the Massachusetts Nurses Association, State Chapter of Health Care Professionals, Unit 7 (union). Pursuant to the CBA, Tortolano was entitled to time and one-half overtime pay for work performed in excess of forty hours per week, including for time spent "on call" while at home. The CBA also set forth a grievance procedure for resolving disputes between an employee and the employer.

         In the fall of 2014, Tortolano's union representative filed three grievances on her behalf with the hospital. One of those grievances alleged that the hospital had failed to pay her for time spent "on call" while at home. The hospital did not take any action on any of the grievances. Thereafter, Tortolano did not take any further steps in the grievance process.

         Instead, Tortolano filed a complaint against the hospital with the Attorney General, alleging, among other things, nonpayment of wages and overtime pay violations. In response, the Attorney General's office sent Tortolano a letter dated November 23, 2015, which stated that it had "carefully reviewed the complaint," and that it had "determined that the proper resolution of this matter may be through a private suit in civil court." The letter stated that G. L. c. 149, § 150, and G. L. c. 151, §§ IB and 20, "establish a private right of action for employees who believe they are victims of certain violations of the state wage laws." The letter concluded that it represented "written assent to sue and grant[ed Tortolano] the authority to pursue this matter against the employer ... as permitted by [G. L. cc] 149 and 151." Finally, the Attorney General's office stated that it would "not take further enforcement action at this time."

         Tortolano commenced this action in December of 2015. The original complaint contained four counts against the hospital, alleging violations of G. L. c. 149, §§ 148 and 150 (failure to pay wages) (count 1); G. L. c. 151, § 1A (failure to pay overtime wages) (count 2); G. L. c. 151, § 15 (failure to keep accurate payment records) (count 3); and breach of contract (count 4). After the defendant filed an initial motion to dismiss, Tortolano amended her complaint to add a fifth count, invoking G. L. c. 149, § 30B.

         There were two successive motions to dismiss filed with respect to Tortolano's claims. In ruling on the first motion, the judge dismissed the first three counts of Tortolano's complaint, relating to purported violations of the Commonwealth's wage laws other than G. L. c. 149, § 30B.[3] The judge denied the hospital's motion with respect to the breach of contract claim, however, accepting Tortolano's allegations that she had exhausted her administrative remedies by filing a complaint with the Attorney General's office, and that the hospital had repudiated or nullified the CBA by ignoring her grievances.

         After Tortolano amended her complaint to add the § 30B claim, the hospital filed a second motion to dismiss. As to Tortolano's breach of contract claim, the hospital this time attached the sections of the CBA setting forth the grievance procedure. The hospital urged that Tortolano had failed to exhaust that procedure, because under the CBA she could have, but did not, continue to pursue her grievances after the hospital failed to respond to her initial filings. The hospital also moved to dismiss the newly added fifth count of Tortolano's amended complaint, on the ground that there is no private right of action to enforce G. L. c. 149, § 30B. In a decision dated January 20, 2017, the judge accepted the hospital's arguments and dismissed both the § 30B and contract claims. Judgment entered for the hospital, and the present appeal followed.

         D ...


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