Dagan v. Jewish Community Housing for Elderly

• Decision Date: 28 September 1998
• Docket Number: No. 96-P-1978,96-P-1978
• Citation: 45 Mass.App.Ct. 511,699 N.E.2d 840
• Parties: , 4 Wage & Hour Cas.2d (BNA) 1712 Aviad DAGAN & another 1 v. JEWISH COMMUNITY HOUSING FOR the ELDERLY.
• Court: Appeals Court of Massachusetts

Page 840

699 N.E.2d 840

45 Mass.App.Ct. 511, 4 Wage & Hour Cas.2d (BNA) 1712

Aviad DAGAN & another ¹ v. JEWISH COMMUNITY HOUSING FOR the ELDERLY.

No. 96-P-1978.

Appeals Court of Massachusetts,

Suffolk.

Argued June 4, 1998.

Decided Sept. 28, 1998.

Paul L. Nevins, for plaintiffs.

David F. Grunebaum, Boston, for defendant.

Before LENK, GILLERMAN and SMITH, JJ.

GILLERMAN, Justice.

From October 1, 1991, through June 13, 1994, Aviad Dagan and Vered Dagan, husband and wife, were employed as the "site representatives" at the Golda Meir House, an apartment complex owned and operated by Jewish Community Housing for the Elderly IV, Inc., a corporation organized under G.L. c. 180 and exempt from Federal income tax under § 501(c)(3) of the Internal Revenue Code (the corporation). The corporation is affiliated with the defendant in this case. The parties have agreed, solely for the purpose of this case, to accept the defendant, Jewish Community Housing for the Elderly (JCHE), as the party legally responsible.

In exchange for their services (described below) the plaintiffs were provided with a rent-free apartment including utilities, and were initially paid $25.00 per month for basic telephone service, later increased to $30.00 per month. They received no other compensation. Following the termination of their employment effective June 13, 1994, the plaintiffs brought suit, with a jury claim, ² alleging violations of the Minimum Fair Wage and Overtime Law, G.L. c. 151, §§ 1 ³ and 1A ⁴ (count I), and the Weekly Payment of Wages Act, G.L. c. 149, § 148 (count II). The judge allowed the defendant's motion for partial summary judgment ⁵ on count I. The judge, sua sponte, was of the opinion that the dismissal of count I also disposed of count II. Thereafter a final judgment was entered in favor of the defendant dismissing both counts of the complaint. The plaintiffs have appealed from that final judgment.

The Golda Meir House (house) is an apartment building. The units are leased to individuals and couples over the age of sixty-two who meet certain eligibility standards set by the Federal government. Most residents pay rent equal to thirty percent of their adjusted gross annual income, with the result that those tenants pay below-market rent for their apartments. Eighty percent of the tenants receive so-called "Section 8" rental subsidies from the Federal government. Private charitable contributions subsidize additional health and social programs offered to the residents.

The mission statement of the defendant states that its basic purpose is to promote, encourage, and support the independence, safety, and security of its residents. To that end the defendant is a provider of "quality of life services" and an organizer of "support services." These include safe and attractive facilities, meals, transportation, and social, cultural, and educational activities as well as home health and nursing care, special clinical diets, and personnel to assist the residents.

Identical employment agreements were signed by each plaintiff. The agreement recites that the rent-free apartment is the "work site" for the job and, together with the provision of utilities and basic telephone service, is in exchange for the duties required to be performed. The agreement includes a job description of a "site representative." The job description sets out the duties to be performed. Each site representative is required to be "on call" one hundred twenty-three hours weekly.

The central issue in this controversy is the need to determine the working hours of the plaintiffs for the purpose of applying the minimum wage and overtime provisions of G.L. c. 151. More particularly, the question is: when does "on-call" time--that is to say, time when the site representative is on duty but not actually working--constitute working time for the purpose of applying the minimum wage and overtime provisions of G.L. c. 151? An agreement to work for less than the minimum wage is unenforceable. G.L. c. 151, § 20. ⁶

Since the plaintiffs, who oppose the defendant's motion for summary judgment, will have the burden of proof at trial, the defendant is entitled to summary judgment "if [it] demonstrates, by reference to material described in Mass. R. Civ. P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case. To be successful, a moving party need not submit affirmative evidence to negate one or more elements of the other party's claim." (Emphasis added.) Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991). If the moving party makes such a showing, then the party opposing the motion--here, the plaintiffs--must "respond by set[ting] forth specific facts showing that there is a genuine issue for trial" (citations omitted). Wheatley v. American Tel. & Tel. Co., 418 Mass. 394, 397, 636 N.E.2d 265 (1994). If the moving party makes the demonstration required by Kourouvacilis, and the party opposing the motion does not meet that showing, the moving party will also have satisfied its obligation to demonstrate "the absence of a genuine issue of material fact on every relevant issue...." Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 127, 686 N.E.2d 1303 (1997).

With that standard in mind, we review the submissions of the parties.

The defendant's submissions. 1. The employment agreement (described above) includes a job description which states that the "[h]ours of Site-Rep. duty are as follows[:] ... Monday through Thursday--5:00 P.M. to 8:00 A.M. ... Friday through Monday--5:00 P.M. Friday eve. to 8:00 A.M. Monday morning," and a full day of duty on Jewish and legal holidays as specified by management. Holidays aside, the job description required each plaintiff to be on call one hundred twenty-three hours weekly.

The duties of a site representative, as stated in the job description and a handbook for site representatives, include the following: regular security rounds of the facility are to be maintained, and miscellaneous housekeeping tasks are to be performed regularly, such as monitoring and changing trash containers, and cleaning up the results of accidental spills. A log, or incident report, of all maintenance and social problems and other events which occur during duty hours is to be maintained. The overarching duty is to "[r]espond[ ] immediately to resident emergency call[s] or alarms [and to] [c]all[ ] emergency medical help as needed." Also included is the need to "[r]espond[ ] to ALL resident calls to determine the nature of said call." "Site Representatives ... are responsible for supplying reasonable and courteous service to our residents in every situation."

The job description also includes the following, to which the plaintiffs subscribed: "I understand that when I am on duty as a JCHE Site Representative I may be required to perform services for the entire length of my shift if situations arise to warrant so" (emphasis added).

2. The plaintiffs maintained a log of each call received from a resident. In the year 1993, for example, by which time the plaintiffs were familiar to the residents, the log showed ninety calls over the twelve months, or an average of 1.73 calls per week. ⁷ There was no record kept of the time needed to respond to the calls.

3. Excerpts from the deposition of the plaintiff Vered Dagan, which consist only of nine pages, include Vered's (Aviad Dagan's wife) testimony that weekday nightly rounds were "never" performed by both plaintiffs together; that the rounds were performed twice a night--at 8:00 P.M. and 10:00 P.M.--and required about "15 to 20 minutes ... walking fast."

4. Excerpts from the deposition of the plaintiff Aviad Dagan, which are more extensive but are frequently disjointed, include the following testimony: Aviad worked Monday through Thursday, during the day, at another job. On Fridays, during the day, there was a period of unknown duration when he and a "partner" attempted to conduct a business--never described--which was "wholesale market to the blind." The business came to nothing. Aviad made the weekday nightly rounds with considerable care. He did the regular rounds at 8:00 and 10:00 P.M. and a brief round at 5:00 P.M. when he returned from his daytime job. The 5:00 P.M. round took about thirty to forty-five minutes; the 8:00 and 10:00 P.M. rounds took not more than an hour or an hour and a quarter. When he was on call he was either in his apartment or someplace in the building. Either Vered or Aviad responded to calls, depending on who was available at the time of the call. All meals were regularly prepared and eaten in their apartment. While on call the plaintiffs were free to sleep, watch television, listen to the radio, play games on the computer, entertain friends (although done only infrequently), and take care of miscellaneous personal responsibilities such as paying bills and doing laundry.

The plaintiffs' submissions. 1. The "Site Representative HAND BOOK--GUIDELINES--Golda Meir House" states the same on-call hours as appear in the job description. The handbook contains additional information, including the following: "Weekday evening rounds must be done every 2 hours, starting at 6:00 P.M. through 10:00 P.M., unless determined otherwise by Management. When on duty it may be necessary, due to circumstances or as determined by Management, for the site representative on duty to remain 'active' for the entire length of one's scheduled shift. Additional duties and/or patrols may be required at the sole discretion of the Management." The handbook continues by describing the manner in which the security rounds are to be executed. The handbook also contains detailed provisions instructing site representatives how to respond to medical emergencies, fire alarms, elevator calls, and calls from the residents, namely, "NEVER argue with the resident. They need...