Opinion
No. 03-3541-A.
October 26, 2005.
MEMORANDUM AND ORDER ON THE DEFENDANT SPILIOTES' MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on the motion of the co-defendant Amelia Spiliotes' ("Spiliotes") for summary judgment. The motion is ALLOWED.
Theory of Relief and Pertinent Facts
The complaint against Spiliotes, the former CEO of the co-defendant Predictive Sciences, Inc. ("PSI"), sounds exclusively in an alleged violation of the Payment of Wages Act, G.L. c. 149, § 148 (the "Wage Act"). The plaintiff was a former at-will employee of PSI, a now defunct company formerly in the business of developing software for the healthcare industry.
In the Spring of 2000 the plaintiff was paid bi-weekly in her position as a market analyst. Without question, as such, she was an employee covered by the Wage Act. However, she received her last paycheck on May 19, 2000. Two weeks later, on May 31, 2000 she and the other employees at PSI were informed that because of the collapsing market for PSI's products and services in the wake of the bursting of the "Tech Bubble", the company could not meet payroll and that any further payments were dependent on the company's finding new equity investors or a friendly merger partner.
The plaintiff — and apparently some others — continued to work in the hope that a cash infusion was possible. The plaintiff described that she typically worked from home, before and after May 31, at her "virtual office". Affidavits of Spiliotes and PSI's former Chief Financial Officer, however, described that little or no substantive work was done at the company after the first quarter of 2000 and that as of May 31 all employees were informed that they were laid off.
Notwithstanding that pay was (at least) suspended, efforts by the company continued to be made to raise venture funds and/or seek a merger partner.
At some point during the late summer-early fall of 2000 the plaintiff moved to New Jersey, where she alleges that she continued to work from her "virtual office" until the end of September. The plaintiff alleges that she did not receive formal notice of her being laid off until early October 2000.
Grounds for the Motion
The plaintiff's complaint was filed on August 26, 2003. Spiliotes moves for summary judgment on the basis that G.L. c. 149, § 150 requires that an action under the Wage Act be brought within three years of the alleged wrongful withholding of wages. Spiliotes submits that the operative date for the running of the three year period is May 31, 2000, the date the plaintiff's salary payments stopped.
Controlling principles
Summary judgment shall be granted where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm'r of Correction, 390 Mass. 419, 422 (1983). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). For these purposes, all disputed facts must be construed in favor of the plaintiff, and any inferences favorable to the plaintiffs should be drawn." Coveney v. President Trustees of the College of the Holy Cross, 388 Mass. 16, 17 (1983).
The moving party may satisfy this burden either by submitting affirmative evidence that negates an essential element of the opposing party's case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of his case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
"If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts establishing the existence of a material fact in order to defeat the motion." Pederson, 404 Mass. at 17. Conclusory statements or argumentative assertions by the opposing party, however, will not suffice. Key Capital Corp. v. MS Liquidating Corp., 27 Mass. App. Ct. 721, 727-728, rev. denied, 406 Mass. 1101 (1989) (finding insufficient "bare assertions and conclusions regarding the [party's] understandings, beliefs and assumptions").
Discussion
There is a material issue of fact as to whether the plaintiff was informed that she was laid off as of May 31, 2000; however, there is no material issue of fact as to the date the complaint was filed, namely, August 26, 2003. Thus, by the operation of the Wage Act's three year limitations period, partial summary judgment as to all wages allegedly payable before that date must be allowed. Counsel for the plaintiff acknowledged as much at oral argument.
The question then becomes whether on the record before the Court any reasonable employee in the plaintiff's position as of August 26, 2000 could have believed that she was still employed as a salaried employee at PSI. I conclude not.
While there may have been some uncertainty in the early summer as to whether the company would survive (thus supporting a prospect that wages were at least accruing), by the end of July there was no such prospect. The plaintiff has failed to present evidence other than "mere allegations and denials" on this issue. By the text of Mass.R.Civ.P. 56(e) such allegations and denials are insufficient to raise an issue of material fact. See also Key Capital Corp. v. MS Liquidating Corp., supra, 27 Mass. App. Ct. at 727-728.
Moreover, in her answers to interrogatories the plaintiff herself described that that company was not "viable" as of the end of May (although there was hope that it would become so again). At a minimum, by August 2000 the plaintiff, who, as noted, was an at-will employee, was on constructive notice that she was no longer a salaried employee and that any prospect of compensation for whatever work she was doing was subject to the uncertain contingency of PSI's being recapitalized. Such an arrangement is not "employment" under the Wage Act. Accordingly, the plaintiff's Wage Act claim fails as a matter of law.
ORDER
No material issue of fact existing, summary judgment shall enter in favor of the defendant Amelia Spiliotes.