ANDREA M. TORTOLANO
LEMUEL SHATTUCK HOSPITAL.
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.
M. McLaughlin, Assistant Attorney General, for the defendant.
Present: Green, C.J., Desmond, & Englander, JJ.
case, we consider whether Andrea Tortolano, a State employee,
can bring claims in the Superior Court against Lemuel
Shattuck Hospital (hospital or defendant)for breach of
contract and for nonpayment of overtime wages in violation of
G. L. c. 149, § 30B. 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
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.
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
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."
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, §
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, §
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.
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.