Opinion
19-P-93
03-05-2020
Michael MCHUGH & others v. COMMONWEALTH & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs are four individuals who worked for the Commonwealth at the Department of Environmental Protection (DEP) pursuant to temporary contracts that were extended numerous times. The plaintiffs filed a class action complaint alleging that the defendants' practice of repeatedly extending the plaintiffs' temporary contracts instead of hiring them as permanent employees violated several statutory and constitutional provisions. The ten-count complaint sought damages as well as injunctive, declaratory, and equitable relief. A judge of the Superior Court (motion judge) dismissed all of the plaintiffs' claims in a margin endorsement stating that they were barred by sovereign immunity or failed to state a claim on which relief could be granted. We affirm, although partially for alternative reasons.
Background. We summarize the pertinent facts alleged in the plaintiffs' complaint. See Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 225 (2011). The DEP hired all of the plaintiffs as temporary employees. Michael McHugh was hired in 1990, James O. Brown, Jr., was hired in 1994, and Alice Smith and Mark Stinson were both hired in 2005. McHugh, Brown, and Smith all worked in the area of wetlands conservation, such as by collecting and mapping data related to wetlands and by providing expertise on State and Federal law. Stinson addressed inquiries about regulatory issues, including by conducting workshops, among other responsibilities. The plaintiffs allege that their responsibilities were materially indistinguishable from those of permanent employees.
The plaintiffs allege that when the DEP first hired them, they were assured that they would become permanent employees if they performed their jobs satisfactorily. The plaintiffs then agreed to repeated extensions of their temporary contracts, instead of pressing the issue of permanent employment, because they believed that the DEP would fire them if they did not agree to the extensions. As temporary employees, the plaintiffs were denied vacation and sick leave, overtime pay, paid holidays, State retirement benefits, and health care at group insurance rates, among other benefits.
The DEP continued to extend the plaintiffs' temporary contracts until shortly after the plaintiffs filed their class action complaint in 2017, at which point the DEP made McHugh, Stinson, and Smith permanent employees. The DEP also offered to make Brown a permanent employee, but ultimately terminated Brown's employment when he declined the terms of the DEP's offer.
As alleged in the complaint, the offer "unfairly accorded neither seniority nor back benefits."
Discussion. 1. Failure to state a claim. Several of the plaintiffs' claims were properly dismissed for failure to state a claim on which relief could be granted. See Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). First, the plaintiffs asserted a claim under the Tort Claims Act, G. L. c. 258, which they contend "does not pertain only to traditional torts" and should be read to provide a cause of action for the loss of their benefits caused by the Commonwealth's and the DEP's violations of State and Federal law. We have never interpreted the Tort Claims Act so broadly, however, and have instead stated that the Tort Claims Act "does not create any new theories of liability, but simply provides that tort actions brought against governmental entities are governed by the same theories of liability that apply to actions involving private parties." Vining v. Commonwealth, 63 Mass. App. Ct. 690, 692 (2005). See Sharon v. Newton, 437 Mass. 99, 111 (2002) (purpose of Tort Claims Act is "to provide a remedy for persons injured as a result of the negligence of government entities"). Where the plaintiffs have not articulated a traditional tort theory of liability, this claim was properly dismissed under rule 12 (b) (6).
Second, as to the plaintiffs' claim for quantum meruit, the plaintiffs argue that they may recover under this theory despite the existence of the temporary contracts because those contracts are voidable for duress. We disagree. The elements of economic duress are as follows: "(1) that one side involuntarily accepted the terms of another; (2) that circumstances permitted no other alternative; and (3) that said circumstances were the result of coercive acts of the opposite party" (quotations and citation omitted). Cabot Corp. v. AVX Corp., 448 Mass. 629, 637-638 (2007). The plaintiffs contend that the defendants coerced the plaintiffs into signing the temporary contracts by conditioning their employment on terms contained therein that purportedly contravened the Social Security Act and G. L. c. 29, § 29A, as discussed infra. Even assuming that this conduct rises to the level of coerciveness required for economic duress, the plaintiffs have not articulated why they had no other alternative but to keep signing the temporary contracts. They have not explained why they could not find employment elsewhere or why they could not have sought a judicial declaration that they had to be made permanent employees, as they ultimately did. See Cabot Corp., supra at 641-642 (discussing plaintiff's ability to purchase product from another supplier and to go to court for declaratory relief).
The plaintiffs also state, without further argument, that the violations of the Social Security Act and G. L. c. 29, § 29A, in and of themselves, rendered the temporary contracts void. However, "whether a contract made in violation of a statute is rendered void ab initio, i.e., treated as having no force or effect, depends upon the language of the statute and the nature of the violation." Service Employees Int'l Union, Local 509 v. Department of Mental Health, 476 Mass. 51, 57 (2016). Where the plaintiffs make no argument regarding why the alleged statutory violations render the temporary contracts void, the issue is waived. We note, nonetheless, that the statute at issue in Service Employees Int'l Union, Local 509 explicitly stated that "no such contract shall be valid." Id. at 55-56, quoting G. L. c. 7, §§ 54, 55. There is no such language in the Social Security Act or in G. L. c. 29, § 29A.
When the plaintiffs did seek judicial relief, the DEP made them permanent employees, rendering the issue moot as discussed infra.
We also affirm the dismissal of the plaintiffs' claims for violations of the wage act, G. L. c. 149, §§ 148 and 148B, and their minimum wage claims, G. L. c. 151, § 1, under rule 12 (b) (6). General Laws c. 149, § 148, requires the Commonwealth, in relevant part, to "pay every mechanic, workman and laborer employed by it" within certain time limits. By the plaintiffs' own allegations, however, they are not mechanics, workmen, or laborers. See Tracy v. Cambridge Jr. College, 364 Mass. 367, 375-376 (1973) (mechanics, workmen, and laborers include "nonprofessional, nonsupervisory clerical employee[s] ... performing ... secretarial, receptionist, stenographic and record keeping functions"). The plaintiffs are instead professionals who provided expertise and trained others in the areas of wetlands conservation and State and Federal law. The plaintiffs' reliance on G. L. c. 149, § 148B, which prohibits employers from misclassifying employees as independent contractors, is also unavailing. While the plaintiffs' complaint repeatedly describes the plaintiffs as "under-benefited long-term contractors," there are no factual allegations to support that they were classified as independent contractors; the factual allegations instead go to whether they were temporary employees. Finally, G. L. c. 151, § 1, prohibits oppressive and unreasonable wages, which G. L. c. 151, § 2, defines as wages that are "both less than the fair and reasonable value of the service rendered and less than sufficient to meet the minimum cost of living necessary for health." The plaintiffs' complaint does not include any factual allegations to support the notion that they were paid an amount less than sufficient to meet the minimum cost of living necessary for health.
The motion judge dismissed these claims as barred by sovereign immunity. We need not address this issue, however, as we affirm the dismissal under rule 12 (b) (6). See Rasheed v. Commissioner of Correction, 446 Mass. 463, 478 (2006) (affirming on alternative basis).
The plaintiffs' argument that they were mechanics, workmen, and laborers because they used tools such as field tapes, compasses, and computers is not persuasive. Such a broad interpretation of the statute would include professionals like medical doctors who use medical equipment and surgical tools and would be contrary to the wage act's narrow construction. See Prozinski v. Northeast Real Estate Servs., LLC, 59 Mass. App. Ct. 599, 605 (2003).
2. Moot claims. As to the plaintiffs' remaining claims for violations of their equal protection and due process rights, the Social Security Act, and G. L. c. 29, § 29A, the only available relief would be in the form of an injunction against ongoing violations of the plaintiffs' constitutional rights or in the form of a declaration determining the parties' rights under the Social Security Act and G. L. c. 29, § 29A. In this context, and where none of the plaintiffs are currently temporary employees, we address whether the plaintiffs' remaining claims are moot.
"[L]itigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome." Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703 (1976). Moreover, in making this determination in the context of this particular class action, we look only to whether the action is moot with respect to the named plaintiffs versus any potential class members. It is true that the mooting of a named plaintiff's claim after a class has been certified does not render the entire class action moot. See Sosna v. Iowa, 419 U.S. 393, 401-403 (1975). At that point, the certified class "acquire[s] a legal status separate from the interest asserted by [the named plaintiff]." Id. at 399. This reasoning has even been extended to some situations in which a named plaintiff's claim becomes moot after the filing of a motion for class certification but before the class is certified. See Gammella v. P.F. Chang's China Bistro, Inc., 482 Mass. 1, 19-20 (2019) ; Cantell v. Commissioner of Correction, 475 Mass. 745, 749, 752-754 (2016). See also United States Parole Comm'n v. Geraghty, 445 U.S. 388, 404 (1980). Here, however, the plaintiffs had not yet moved for class certification. In these circumstances, the plaintiffs do not represent the class, the class may not be certified, and the class action is moot. See Gonzalez v. Commissioner of Correction, 407 Mass. 448, 451-452 (1990). See also Cruz v. Farquharson, 252 F.3d 530, 533-534 (1st Cir. 2001).
Nor do we think the case should proceed on the alternative basis asserted by the plaintiffs that their claims are capable of repetition, yet evading review. Where the plaintiffs worked for years as temporary employees, there is no basis for us to conclude that their claims are "so transient by their very nature they are likely to become moot before a court reasonably can rule on a certification motion." Gonzalez v. Commissioner of Correction, 407 Mass. 448, 452 (1990).
We affirm the dismissal of the plaintiffs' constitutional claims on this alternative basis. See Rasheed v. Commissioner of Correction, 446 Mass. 463, 478 (2006). The plaintiffs allege violations of their State and Federal equal protection and due process rights. In substance, they allege that the defendants had no rational basis for treating the plaintiffs differently than permanent employees, who performed the same job functions and were thus similarly situated, and that the plaintiffs were deprived of various benefits without due process by being classified as temporary employees. The plaintiffs first assert these claims without reference to any statutory causes of action. In these circumstances, the only available relief would have been to enjoin the Commonwealth from continuing to violate the plaintiffs' equal protection and due process rights. See Doe, Sex Offender Registry Bd. No. 474362 v. Sex Offender Registry Bd., 94 Mass. App. Ct. 52, 63-64 (2018). Where the plaintiffs have not articulated any ongoing violations, however, the issue is moot. The plaintiffs' separate claim for violation of 42 U.S.C. § 1983, which explicitly seeks only injunctive relief, fails for the same reason.
As to the plaintiffs' due process and equal protection rights under the Fourteenth Amendment to the United States Constitution, the United States Supreme Court recognized in Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388, 396-397 (1971), an implied private cause of action for damages in the Fourth Amendment. Whether the Supreme Court would extend Bivens to the Fourteenth Amendment remains an open question, but the plaintiffs' sole citation to Bivens without further argument does not rise to the level of appellate argument.
While the fifth count in the plaintiffs' complaint is labeled "Violation of 42 U.S.C. § 1983 (Prospective Injunctive Relief)," one of the numbered paragraphs within that count requests damages. Regardless, the plaintiffs' appellate brief makes clear that they seek only injunctive relief on their claim under 42 U.S.C. § 1983.
The plaintiffs also allege that the Commonwealth's practice of repeatedly extending their temporary contracts violated the Social Security Act and G. L. c. 29, § 29A, which prohibits the Commonwealth from using "[c]onsultant contracts ... as substitutes for state positions." While the plaintiffs' complaint seeks damages and injunctive relief under both statutes, the plaintiffs' appellate arguments focus instead on whether they may obtain declaratory relief under G. L. c. 231A, § 1. The requests for declaratory relief are moot. As to the Social Security Act, the plaintiffs argue that they were improperly classified as temporary employees for purposes of the Social Security Act. The regulation that they cite, however, pertains to the circumstances in which a State employee's wages are subject to tax under FICA. See 26 C.F.R. § 31.3121(b)(7)-2 (2019). Any declaration regarding that regulation would determine the Commonwealth's obligation to withhold FICA taxes from temporary employees' wages, a declaration that the plaintiffs do not seek and which is now moot anyway because the plaintiffs are no longer temporary employees. As to G. L. c. 29, § 29A, any such declaration would go to whether the Commonwealth could continue to extend the plaintiffs' temporary contracts. Where none of the plaintiffs are currently working pursuant to temporary contracts, that request for declaratory relief is also moot.
Without addressing whether the plaintiffs even have a private cause of action under the Social Security Act or G. L. c. 29, § 29A, we affirm the dismissal of any such claims for damages and injunctive relief as barred by sovereign immunity. The plaintiffs do not argue that either statute contains a waiver of sovereign immunity and instead argue that the doctrine of sovereign immunity is unconstitutional, either in whole or in the context of employment laws. As an intermediate appellate court, however, we do not alter established rules of law. See Bergendahl v. Massachusetts Elec. Co., 45 Mass. App. Ct. 715, 726 (1998).
Judgment affirmed.