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Vancour v. Town of Tisbury

Superior Court of Massachusetts, Dukes

October 19, 2018

Stephen VANCOUR
v.
TOWN OF TISBURY

          DECISION AND ORDER REGARDING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY NO. 16.0) AND PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY NO. 18.0)

          Brian A. Davis, Associate Justice of the Superior Court

          This is a case in which plaintiff Stephen Vancour ("Plaintiff") claims that, for approximately eight years, he was misclassified by his employer, defendant Town of Tisbury (the "Town" or "Defendant"), as an independent contractor rather than an employee. Certain material facts are undisputed.[1] Plaintiff was hired by the Town in August 2005 to fill the position of "Chief Wastewater Operator." Plaintiff was aware at that time that his immediate predecessor in the position of Chief Wastewater Operator was a Town employee, and he also was aware that the Town had advertised the position as one for an "employee," and not as a "contract" position. For reasons that the parties disagree upon, Plaintiff ultimately was hired by the Town in August 2005 as an independent contractor pursuant to a written "Services Contract."[2] Plaintiff remained an independent contractor until December 2013, when he was appointed to the position of "Wastewater Superintendent," which was a Town "employee" position. Plaintiff remained a Town employee until his resignation in October 2015.

         Plaintiff commenced this action in August 2016 alleging, among other things, that he had been unlawfully misclassified as an independent contractor by the Town between August 2005 and December 2013. He seeks compensation for his purported misclassification under G.L.c. 149, §§ 148B and 150, and for the unpaid overtime wages that he allegedly is owed under G.L.c. 151, § 1A. Plaintiff also claims that he incurred damages because he was subjected to a "hostile work environment" while he labored for the Town, and that the Town unlawfully denied him the ability to accrue and use "earned sick time" as provided in G.L.c. 149, § 148C.[3] The Town denies all of Plaintiff’s claims.

         The case came before the Court most recently on the Town’s motion for summary judgment on each of Plaintiff’s claims. The gist of the Town’s summary judgment argument is that: (1) Plaintiff possesses insufficient evidence to support his claim that he was subjected to a hostile work environment; (2) Plaintiff’s claims that he was misclassified as an independent contractor and denied overtime wages are restricted, on statute of limitations grounds, to the three-year period preceding the commencement of this suit;[4] and (3) Plaintiff’s claim that he was unlawfully denied the ability to accrue and use earned sick time is barred because the Town never adopted or accepted the Commonwealth’s "Earned Sick Time Law," as that statute expressly requires in order to become applicable to the employees of a particular city or town. See G.L.c. 149, § 148C ("[E]mployees employed by cities and towns shall only be considered Employees for purposes of this law if this law is accepted by vote or by appropriation as provided in Article CXV of the Amendments to the Constitution of the Commonwealth").

          Plaintiff opposes the Town’s motion for summary judgment and has cross moved for the entry of summary judgment in his favor on each of his claims.

         The Court conducted a hearing on Defendants’ motion for summary judgment and Plaintiff’s cross motion for summary judgment on October 19, 2018. Both sides appeared and argued. Upon consideration of the motion papers submitted by the parties and the oral arguments of counsel, the Town’s motion for summary judgment is ALLOWED as to Plaintiff’s claim that he was subjected to a hostile work environment (Original Verified Complaint, Count I), and his claim that he was unlawfully denied the ability to accrue and use earned sick time (id., Count V). The Court further rules that Plaintiff is barred on statute of limitations grounds from recovering damages on his claims that he was misclassified as an independent contractor (id., Count II) and wrongfully denied overtime wages (id., Count III) to the extent such damages were incurred prior to August 8, 2013 (i.e., three years prior to the commencement of this action). Plaintiff’s cross motion for summary judgment is DENIED in its entirety. The reasons for the Court’s rulings were explained on the record at the motion hearing and are summarized, briefly, below.

         First, a claim based on a "hostile work environment" exists where the claimant can demonstrate "unlawful acts of discrimination" in violation of G.L.c. 151B, § 4(1), that create a work environment "pervaded by harassment or abuse, with the resulting intimidation, humiliation, and stigmatization, [and that] poses a formidable barrier to the full participation of an individual in the workplace." Windross v. Village Automotive Group, Inc., 71 Mass.App.Ct. 861, 863 (2008) (internal quotation marks and citations omitted). Section 4(1) of Chapter 151B prohibits discrimination based on "race, color, religious creed, national origin, sex, gender identity, [or] sexual orientation ..." G.L.c. 151B, § 4(1). But Plaintiff acknowledged at oral argument that his hostile work environment claim in this case is not based on any alleged discriminatory conduct or animus that is prohibited by Section 4(1). More specifically, Plaintiff confirmed that he does not claim he was subjected to a hostile work environment on account of his race, color, religious creed, national origin, sex, gender identity, or sexual orientation. Plaintiff alleges, instead, only that he was "berated, shouted at, and assaulted" on occasion by Town employees due to various disagreements that arose between himself and his coworkers. Original Verified Complaint, ¶¶ 20-21; SOMF, ¶¶ 7-11. These allegations are not enough to support a legally-viable claim based on a hostile work environment. "Merely because a supervisor is overbearing or fellow employees unsociable and hard to get along with, does not suffice" to establish a hostile work environment "unless underlying motives of a sexual or gender discriminatory nature are implicated." Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 441 (1st Cir. 1997) (applying federal law). For this reason alone, Plaintiff’s hostile work environment claim fails.

         Second, Plaintiff’s claims that he was misclassified as an independent contractor and denied overtime wages are subject to a three-year statute of limitations. See G.L.c. 149, § 150 (requiring commencement of suit for alleged violation of G.L.c. 149, § 148B, "within 3 years after the violation"). Plaintiff argues, however, that the statute of limitations as to these claims was tolled until he became a Town employee in December 2013 because, prior to that time, he neither knew, nor should have known his correct classification due to misleading information purportedly provided to him by the Town. See, e.g., Crocker v. Townsend Oil Co., 464 Mass. 1, 8-9 (2012) ("[W]hen a defendant fraudulently conceals a cause of action from the knowledge of a plaintiff, the statute of limitations is tolled ... for the period prior to the plaintiffs’ discovery of the cause of action") (internal quotation marks and citations omitted).

          Where a question exists as to whether a claimant knew or should have known of the harm caused by an opposing parties’ conduct, it is the claimant’s burden to "demonstrat[e] that [he or she] did not know of the [harmful conduct] within the statute of limitations and that ‘in the exercise of reasonable diligence, [he or she] should not have known.’ Albrecht v. Clifford, 436 Mass. 706, 715 (2002) (quoting Friedman v. Jablonski, 371 Mass. 482, 487 (1976)). Whether a claimant actually knew or should have known a particular fact at a particular point in time typically is "a factual issue that should not only survive a motion to dismiss, but be decided by the trier of fact." Ortiz v. Mass. Med. Services, Inc., 86 Mass.App.Ct. 1116, 2014 WL 5326511, at *2 (Oct. 21, 2014) (Rule 1:28 decision). "However, a judge can still determine, as matter of law, whether the plaintiff’s complaint demonstrate[s] sufficient heft to plausibly show that the plaintiff’s lack of knowledge was objectively reasonable." Id. Cf. Melrose Housing Auth. v. New Hampshire Ins. Co., 402 Mass. 27, 31 n.4 (1988) ("Inherent unknowability is not a fact, but rather a conclusion to be drawn from the facts").

         In this case, the undisputed factual record establishes that Plaintiff was fully aware when he was first hired in August 2005 that his immediate predecessor as Chief Wastewater Operator was a Town employee, and that Plaintiff also was aware that the Town had advertised the position of Chief Wastewater Operator as one for a Town "employee," not as a "contract" position. SOMF, ¶¶ 16-17. These facts are sufficient, in-and-of themselves, to demonstrate that Plaintiff, at the very least, should have known as of August 2005 that the job of Chief Wastewater Operator potentially qualified as an "employee," as opposed to a "contract," position. Certainly any person in Plaintiff’s position, exercising "reasonable diligence," would have been able to reach such a conclusion at that time. The Court makes this ruling as a matter of law because no other conclusion is "objectively reasonable." Ortiz, 2014 WL 5326511, at *2. Plaintiff is barred, as a result, from recovering damages on Counts II and III of his complaint to the extent such damages were incurred prior to August 8, 2013.

         Third, Plaintiff agreed at oral argument that the Town correctly recites the requirement in G.L.c. 149, § 148C, that a city or town must expressly adopt or accept the Commonwealth’s "Earned Sick Time Law" before its employees become entitled to accrue and use earned sick time as a matter of right. Plaintiff previously has admitted that the Town never adopted or accepted G.L.c. 149, § 148C. SOMF, ¶ 18.[5] Thus, Plaintiff does not qualify as an "employee" for purposes of G.L.c. 149, § 148C, and the Town is entitled to summary judgment in its favor on Count IV of Plaintiff’s complaint alleging that he was unlawfully denied the ability to accrue and use earned sick time.

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Notes:

[1] The undisputed material facts recited in this Decision and Order are taken from the parties’ Consolidated Statement of Material Facts Pursuant to Superior Court Rule 9A(b)(5)(v) ("SOMF," ...


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