Harrison v. Mass. Bay Transp. Auth., 21-P-457

CourtAppeals Court of Massachusetts
Writing for the CourtBLAKE, J.
Docket Number21-P-457
Decision Date13 September 2022

CRAIG HARRISON & another[1]


No. 21-P-457

Appeals Court of Massachusetts, Suffolk

September 13, 2022

Heard: April 6, 2022.

Civil action commenced in the Superior Court Department on September 19, 2018.

A motion to dismiss was heard by Kenneth W. Salinger, J.

Stephen S. Churchill for the plaintiffs.

John S. Gearan (Terence P. McCourt also present) for the defendant.

Present: Blake, Neyman, & Lemire, JJ.


The plaintiffs, Craig Harrison and Barbara Ruchie, were hired by staffing agencies to perform information technology (IT) services for the defendant, Massachusetts Bay


Transportation Authority (MBTA). As relevant here, the plaintiffs filed a complaint[2] in the Superior Court against the MBTA for violation of G. L. c. 149, § 148B, the independent contractor statute. Harrison also alleged retaliation under G. L. c. 149, § 148A.[3] The MBTA moved to dismiss these claims contending that as a public employer and political subdivision of the Commonwealth, the claims were barred by sovereign immunity. The motion judge so concluded and dismissed the claims for lack of jurisdiction. The plaintiffs appeal from the judgment dismissing these claims. We affirm.


We accept as true the facts drawn from the plaintiffs' well-pleaded complaint. See Osborne-Trussell v. Children's Hosp. Corp., 488 Mass. 248, 250 (2021). From March 2017 until July 2018, Harrison performed IT services for the MBTA pursuant to a contract between the MBTA and M&R Consultants Corporation (M&R). Under the terms of the contract, the MBTA paid M&R for the IT services performed by Harrison, and M&R in turn paid Harrison. From June 2016 until February 2017, Ruchie performed IT services for the MBTA pursuant to a contract


between the MBTA and Computer Merchant, LTD (Computer Merchant). Under the terms of the contract, Ruchie was paid by and received certain benefits as a W-2 employee of Computer Merchant. Both plaintiffs were required to report to MBTA offices on times and days set by the MBTA. The plaintiffs allege that they were misclassified by the MBTA under the independent contractor statute, and Harrison also claims that he was fired in retaliation for asserting that he had been misclassified.


1. Standard of review.

We review, de novo, the judge's legal conclusions that sovereign immunity bars the plaintiffs' claims and was not waived. See Brown v. Office of the Comm'r of Probation, 475 Mass. 675, 677 (2016). See generally Donahue v. Trial Court, 99 Mass.App.Ct. 180, 182 (2021) .

2. Establishment of the MBTA.

In the early 1960s, a "network of private companies [regulated by the Massachusetts Transportation Authority] . . . provided mass transportation services in the greater Boston area." Lavecchia v. Massachusetts Bay Transp. Auth., 441 Mass. 240, 244 (2004). In response to the "imminent failure" of a number of these private street railway companies and the availability of Federal aid, the Legislature created the MBTA as "a body politic and corporate and a political subdivision of the commonwealth" (citation omitted) . Id. at 243. Its public purpose was to


"operate, in the public interest, commuter railroads, rapid transit, buses, street-cars[,] and any other forms of mass transportation" (citation omitted) . Id. at 243-244.

At the time the MBTA was created, the Commonwealth had consented to suit in a very limited number of situations. See Lavecchia, 441 Mass. at 244 n.7 ("Massachusetts still [clung] tenaciously to the concept that the sovereign [could] do no wrong and ha[d] relinquished little of its sovereign immunity. . . . However, the state had shown an inclination to provide greater relief to the person injured by the tortious activity of local communities" [citation omitted]). Although contract actions were permitted against the Commonwealth, tort actions were not. Id. The Legislature included a provision in the MBTA's enabling act, however, waiving immunity, inserted by St. 1964, c. 563, § 21, and codified at G. L. c. 161A, § 21,[4]with an eye toward allowing "the public to retain the right to bring tort actions against the MBTA to the extent that such a right previously had been available against private railway and streetcar companies."[5] Lavecchia, supra at 244. See Smith v. Massachusetts Bay Transp. Auth.


462 Mass. 370, 373 (2012) (Legislature "placed the MBTA on the same footing as any private transport operator, requiring it, among other things, to pay interest and costs in accordance with the law generally applicable to claims in tort").

In November 2009, the Legislature added the MBTA to the list of "public employers" covered by the Massachusetts Tort Claims Act, and struck the entire second paragraph of G. L. c. 161A, § 38. See St. 2009, c. 25, §§ 112-113, 123 (2009 amendments). Importantly, the Legislature also struck the language in paragraph one of § 38 that made the MBTA liable "to the same extent as a private street railway company" for certain acts and negligence, thereby leaving no doubt as to the MBTA's status as a State entity and "public employer" under § 38. Cf. Smith, 462 Mass. at 371 (2009 amendments made MBTA "public employer" under the Tort Claims Act).

3. Rules of construction.

"The general rule of law with respect to sovereign immunity is that the Commonwealth or any of its instrumentalities cannot be impleaded in its own courts except with its consent, and, when that consent is granted, it can be impleaded only in the manner and to the extent expressed


[by] statute" (quotation and citation omitted). DeRoche v. Massachusetts Comm'n Against Discrimination, 447 Mass. 1, 12 (2006). "[W]aiver[s] of sovereign immunity must be 'expressed by the terms of the statute, or appear by necessary implication from them'" (citation omitted). Commonwealth v. Exxon Mobil Corp., 489 Mass. 724, 731 (2022) (Exxon Mobil). Accord Boston Med. Ctr. Corp. v. Secretary of the Exec. Office of Health & Human Servs., 463 Mass. 447, 454 (2012).

Although we apply a "natural and ordinary reading of the statute [allegedly waiving immunity]," Trustees of Health & Hosps. of Boston, Inc. v. Massachusetts Comm'n Against Discrimination, 65 Mass.App.Ct. 329, 338 (2005), S.C., 449 Mass. 675 (2007), "[t]he rules of construction governing statutory waivers of sovereign immunity are stringent" (citation omitted). Grand Manor Condominium Ass'n v. Lowell, 100 Mass.App.Ct. 765, 770 (2022). However, "even a strict interpretation must be reasonable" (citation omitted) . Id. A sovereign immunity analysis ultimately turns on legislative intent. Id.

4. Legislative intent.[6]

The statutory language is "the primary source of insight into" legislative intent (citation


omitted). Casseus v. Eastern Bus Co., 478 Mass. 786, 795 (2018). The first paragraph of the antiretaliation provision of the wage and hours laws, G. L. c. 149, § 148A, states: "No employee shall be penalized by an employer in any way as a result of any action on the part of an employee to seek his or her rights under the wages and hours provisions of this chapter."[7] Although the statute uses the terms "employee" and "employer," it is silent as to whether public employment is covered by its provisions. Relying on the Legislature's use of the words "employee" and "employer" in the first and second paragraphs of G. L. c. 149, § 148A, the plaintiffs argue that § 148A "is expressed in the most expansive terms possible, with no limitations or language narrowing its scope." We disagree, as we believe that the terms "employee" and "employer," undefined in this section of the statute, create an ambiguity as to whether these words apply to public employers such as the


MBTA. Contrast, e.g., G. L. c. 149, § 6 1/2 (a) (broadly defining "public employers" as "any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth or of any political subdivision of the commonwealth, any quasi-public independent entity and any authority or body politic and corporate established by the general court to serve a public purpose"); G. L. c. 149, § 52C (defining "employer" subject to personnel records law as "an individual, corporation, partnership, labor organization, unincorporated association or any other legal business, public or private, or commercial entity including agents of the employer"). The notable absence of any indication in the retaliation provisions that the Legislature intended to include within their scope public employers, such as the MBTA, militates against application of these provisions to the MBTA.[8]


Likewise, the independent contractor statute, G. L. c. 149, § 148B, added by St. 1990, c. 464, is silent as to whether public employment is encompassed within its provisions, and therefore creates an ambiguity.[9] To resolve this ambiguity, we are guided by the Legislature's use of the word "whoever" in the remedial provision of the statute.[10] The Legislature has defined, for purposes of construing all Massachusetts statutes, the word "whoever" to "include corporations, societies, associations, and partnerships." G. L. c. 4, § 7, Twenty-third. And "as [a] general rule," absent clear indication in the statute to the contrary -- not present here -- the "word 'whoever' when used in [the] General Laws does not encompass government agencies or municipalities" (emphasis added, citation omitted). Boxford v. Massachusetts Highway Dep't, 458 Mass. 596, 605 (2010).


See Hansen v. Commonwealth, 344 Mass. 214, 219 (1962) ("it is a widely accepted rule of statutory construction that general words in a statute . . . will not ordinarily be construed to include the State or political subdivisions thereof"). Accord Exxon Mobil, 489 Mass. at 731 (Attorney General is not "party" within meaning of G. L. c. 231, § 59H) .

The Legislature has subjected public entities to the...

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