Tortolano v. Lemuel Shattuck Hosp.
Tortolano v. Lemuel Shattuck Hosp.
Opinion of the Court
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)
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.,
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, §§ 1B 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.
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 *520the hospital, and the present appeal followed.
Discussion. 1. Standard of review. In reviewing the allowance of a motion to dismiss under Mass.R.Civ.P. 12(b)(6),
2. Breach of contract. Tortolano contends that the judge erred in dismissing her breach of contract claim on the ground that she failed to exhaust the grievance procedure in the CBA. There was no error.
In general, where a collective bargaining agreement includes a grievance procedure, "failure to pursue contractual grievance procedures bars suit against the employer." Johnston v. School Comm. of Watertown,
Section 25.2 of the CBA sets forth a four-step grievance procedure for resolving disputes under the CBA. The first step is for an employee or the union to submit a written grievance to the hospital, which, in turn, shall provide a written response to the grievance within seven days. If either the employee or the union is dissatisfied with the grievance decision, the CBA provides, in steps 2 and 3, for two more appeals within the hospital, after which arbitration may be invoked. Importantly, section 25.6 of the CBA further provides that if the hospital exceeds any time limit for responding, the employee or the union may assume that the grievance has been denied and may invoke the next step of the procedure, except that only the union may request arbitration in the fourth step.
Here, the grievance procedure was never exhausted because neither Tortolano nor the union proceeded beyond step 1. Pursuant to the CBA's express terms, when the hospital did not respond to Tortolano's grievances within the prescribed time period, the grievances were deemed denied, and either Tortolano or the union was permitted to invoke the second step of the process. Tortolano could have done so, without the union's involvement. Rather *521than continue with the grievance process, however, Tortolano brought this lawsuit.
This case accordingly is controlled by Johnston,
Johnston thus establishes that Tortolano's contract claim must be dismissed. The grievance procedure was not exhausted before this suit was filed. Although this case differs from Johnston in that here the union invoked the first step of the grievance procedure, Tortolano could have progressed through the next two steps without the union's involvement, and Tortolano does not allege or argue that she was inhibited from doing so. Moreover, even if the union was at fault for the failure to exhaust, Tortolano's remedy was to seek relief from the Department of Labor Relations, before resorting to the courts. See
Finally, Tortolano cannot avoid the grievance process by pointing to the inaction of the employer. The CBA expressly contemplated such inaction, by providing that the employer's failure to respond constituted a denial of the grievance, thereby permitting the employee to move forward in the process. The hospital's unresponsiveness to Tortolano's grievances therefore did not constitute a repudiation or nullification of the grievance machinery -- she needed to continue pursuing the grievance procedure set forth in the CBA. See Balsavich,
3. Violation of G. L. c. 149, § 30B. Tortolano next contends that the motion judge erred in ruling that she had no private right of action under G. L. c. 149, § 30B. She asserts that the statute must be broadly construed to effectuate its purpose of protecting the right of public employees to overtime wages. See generally Crocker v. Townsend Oil Co.,
There is no express private right of action for violations of G. L. c. 149, § 30B, so the question is whether one should be inferred in light of the statutory scheme and the Legislature's purpose and intent. See *522Loffredo v. Center for Addictive Behaviors,
With respect to c. 149, the general enforcement power is vested in the Attorney General:
"The attorney general shall, except as otherwise specifically provided, enforce the provisions of this chapter, and shall have all necessary powers therefor" (emphasis added).
G. L. c. 149, § 2, as amended by St. 1996, c. 151, § 368. Importantly, there are several provisions of c. 149 that grant express private rights of action for violations of certain sections of the statute, but none that provide a right of action with respect to § 30B. See, e.g., G. L. c. 149, § 27 (employee aggrieved by violation of prevailing wage law may initiate civil action after filing complaint with Attorney General); G. L. c. 149, § 150, as amended through St. 2014, c. 505, § 2 (employee aggrieved by violation of G. L. c. 149, §§ 33E, 52E, 148, 148A, 148B, 148C, 150C, 152, 152A, 159C, or 190, or by violation of G. L. c. 151, § 19, may "institute and prosecute in his own name and on his own behalf ... a civil action for injunctive relief, for any damages ... , and for any lost wages" after filing complaint with Attorney General); G. L. c. 149, § 185(d ) (employee subject to retaliation may institute civil action in Superior Court).
The question here is in large part controlled by the reasoning in Salvas,
Finally, we turn to the matter of the letter from the Attorney General's office. Tortolano's argument in this court -- that the letter conferred on her the right to bring an action in her own name under G. L. c. 149, § 30B -- was not raised in either her amended complaint or in her opposition to the hospital's motion to dismiss the fifth count of that complaint.
*523Accordingly, this argument was waived. See Palmer v. Murphy,
Even if it had been properly raised, however, the argument would fail. As indicated, under the statutory scheme, the authority to enforce G. L. c. 149, § 30B, rests with the Attorney General. See G. L. c. 149, § 2. Tortolano asserts that the Attorney General's letter passed the enforcement power on to her, but we do not agree. First, the letter did not appoint Tortolano, or her counsel, to act as a special assistant attorney general, working on behalf of and subject to the Attorney General's control. See generally G. L. c. 12, § 3 (attorney general shall appear for Commonwealth, and "[a]ll such suits and proceedings shall be prosecuted or defended by [her] or under [her] direction"); New England Div. of the Am. Cancer Soc. v. Commissioner of Admin.,
Second, while the letter does authorize Tortolano to bring a private right of action under some sections of c. 149, the Attorney General was without power to confer such a private right of action with respect to § 30B. Where, as discussed above, the Legislature has not provided a private right of action, the Attorney General cannot create an alternative enforcement mechanism by unilaterally conferring such a private right of action on an individual.
Conclusion. For the foregoing reasons, there was no error in the dismissal of the amended complaint.
Judgment affirmed.
The Commissioner of Public Health has "general supervision and control" of Lemuel Shattuck Hospital. G. L. c. 111, § 69E, as appearing in St. 1975, c. 752, § 4.
General Laws c. 149, § 30B, as amended by St. 1960, c. 762, § 1, provides, in pertinent part:
"All service in excess of eight hours in any one tour of duty or forty hours in any one work week rendered by any employee of the commonwealth ... shall be compensated for at the rate of one and one half times the regular hourly rate of said employee for every hour or fraction thereof of such services rendered."
These counts were dismissed because the particular statutory provisions invoked either did not apply to Tortolano or otherwise did not give rise to a claim. For example, G. L. c. 151, § 1A, which provides rights to overtime pay, does not apply to employees of a "hospital." See G. L. c. 151, § 1A(16), as appearing in St. 1969, c. 108. Tortolano does not challenge the motion judge's dismissal of counts 1 through 3.
Contrary to Tortolano's argument, the hospital was not precluded from asking the judge to revisit the legal sufficiency of Tortolano's breach of contract claim. A judge is not precluded from reconsidering a prior decision. See Peterson v. Hopson,
Pursuant to G. L. c. 149, § 150, Tortolano did institute a civil action "in [her] own name and on [her] own behalf" for alleged violations of G. L. c. 149, § 148. Section 148, however, states that it "shall not apply to an employee of a hospital which is supported in part by contributions from the commonwealth ... unless such employee requests such hospital to pay [her] weekly." G. L. c. 149, § 148, as appearing in St. 1956, c. 259. Because Tortolano did not request weekly payment of her wages, her claim under § 148 was dismissed, and she has not challenged that determination.
The letter from the Attorney General's office appears to be a form letter that is generated in response to the filing of a complaint for, among other matters, nonpayment of wages. The letter certainly can be misconstrued, however, because it suggests that a claimant can take a course of action to remedy statutory violations which, in fact, may not be available. For example, although the letter can be read as authorizing Tortolano to bring an expedited lawsuit under G. L. c. 149, § 150, which she did, see note 5, supra, it turns out that Tortolano was not eligible for relief under that section. While the Attorney General contended, at argument, that the letter only assents to those lawsuits "permitted by [G. L. c.] 149," such is not the most natural reading of the letter.
We acknowledge that the various provisions of G. L. cc. 149 and 151 combine for a rather unfortunate result in Tortolano's case. The express private right of action under G. L. c. 149, § 150, does not apply to violations of § 30B, and because Tortolano is an employee of a State hospital, she falls outside the protection of other provisions of the statutes.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.