Smith v. Winter Place LLC

• Decision Date: 01 August 2006
• Citation: 447 Mass. 363,851 N.E.2d 417
• Parties: Samantha SMITH & others<SMALL><SUP>1</SUP></SMALL> v. WINTER PLACE LLC<SMALL><SUP>2</SUP></SMALL> & others.<SMALL><SUP>3</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

851 N.E.2d 417

447 Mass. 363

Samantha SMITH & others¹ v. WINTER PLACE LLC² & others.³

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 3, 2006.

Decided August 1, 2006.

Shannon Liss-Riordan, Boston, for the plaintiffs.

Gordon P. Katz, Boston, for the defendants.

The following submitted briefs for amici curiae:

John E. Coyne & Kevin P. Sweeney, Boston, for Massachusetts Restaurant Association.

Ingrid Nava, Audrey R. Richardson, Roslindale, Patti A. Prunhuber, Northampton & Donald J. Siegel for Greater Boston Legal Services & others.

Julia J. Carabillo & Andrea C. Kramer, Boston, for The Women's Bar Association of Massachusetts.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

CORDY, J.

Samantha Smith, Bruce Porter, and Charles Kimball were servers at the landmark Boston restaurant Locke-Ober; Pierre Sosnitsky was the maitre d' and a manager. They contend that the defendants terminated their employment in violation of the retaliation provision of the Massachusetts wage laws, G.L. c. 149, § 148A, for complaining about what they perceived to be violations of the statute's tip pooling provision, G.L. c. 149, § 152A. A Superior Court judge granted the defendants' motion for summary judgment with respect to Kimball and Sosnitsky because their "complaints" about the alleged wage law violations were made only internally to management and not to the Attorney General's office. The judge denied the motion for summary judgment as to Smith and Porter because there was evidence that they had each complained to the Attorney General's office before being terminated.⁴

Subsequent to the ruling on the motion for summary judgment, another judge granted the plaintiffs' motion to report the central legal question in the case to the Appeals Court pursuant to Mass. R. Civ. P. 64(a), as amended, 423 Mass. 1403 (1996). We granted the plaintiffs' application for direct appellate review.⁵ The question now before us is: "Does G.L. c. 149, § 148A, prohibit employers from retaliating against employees for making internal allegations of wage violations, even if those employees never brought their allegations to the attention of the Attorney General?"

For the reasons set forth below, we answer the question in the affirmative. Accordingly, we reverse the entry of summary judgment against Kimball, and affirm the denial of summary judgment against Smith and Porter. We also affirm summary judgment against Sosnitsky, insofar as his conduct, the mere passing on of the servers' complaints to the defendants, was not activity protected by the retaliation statute.⁶

1. Background. We recite the evidence in the summary judgment record, in its light most favorable to the plaintiffs. Locke-Ober reopened in November, 2001, under the ownership of the defendants Paul Licari and Lydia Shire. Sosnitsky was hired as the maitre d'. When the restaurant reopened, it instituted a tip pooling system. The system was proposed and designed by Sosnitsky, based on his experience working in another Boston restaurant. It required servers to share their tips with busboys, bartenders, and the maitre d' at each shift according to a point system.⁷ The system met with immediate controversy; servers complained that they were not receiving all of their tips, and, in particular, they complained that Sosnitsky should not be sharing in their tip pool. Based on the publicity that tip pooling had received in other contexts, and a pamphlet prepared and distributed by the Attorney General's office entitled Commonly Asked Questions about the Massachusetts Wage and Hour Laws, the servers believed that the policy adopted by the defendants violated the Massachusetts wage laws.⁸

Smith and Porter complained about the tip pooling system to the Attorney General's office prior to their termination. All of the server plaintiffs complained about the tip system to Sosnitsky. Sosnitsky advised Licari that the servers were upset about the tip pooling system, upset that a manager was receiving a portion of their tips, and believed that the tip system was illegal. Licari's response was that "we should just get rid of them." The servers were subsequently fired by Sosnitsky.⁹ Shortly thereafter, Licari fired Sosnitsky. Sosnitsky claims that Licari was unhappy with him for bringing the servers' complaints to his attention and that he was fired as a result.¹⁰

2. Discussion. a. The reported question. General Laws c. 149, § 148A, provides:

"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.

"Any employer who discharges or in any other manner discriminates against any employee because such employee has made a complaint to the attorney general or any other person, or assists the attorney general in any investigation under this chapter, or has instituted, or caused to be instituted any proceedings under or related to this chapter, or has testified or is about to testify in any such proceedings, shall have violated this section and shall be punished or shall be subject to civil citation or order as provided in [§] 27C" (emphasis added).

The plain language of the first paragraph of § 148A extends the protection of the statute to employees who are penalized for taking "any action" to seek their rights under the laws governing wages and hours. A complaint made to an employer (or a manager of the employer) by an employee who reasonably believes that the wages he or she has been paid violate such laws readily qualifies as such an "action." See, e.g., Simon v. State Examiners of Electricians, 395 Mass. 238, 242, 479 N.E.2d 649 (1985) ("starting point of our analysis is the language of the statute").

We decline the defendants' invitation to interpret the second paragraph as narrowing the statute's protective reach to those employees who make an official complaint to a person involved in the civil or criminal enforcement of the wage and hour laws. Statute 1998, c. 236, § 11, which added the second paragraph to G.L. c. 149, § 148A, is consistent with, and indeed expands the range of employees whose actions are protected in the first paragraph.¹¹ Of particular significance, it protects employees from retaliation for making a "complaint to the attorney general or any other person." While we need not decide whether the Legislature intended this provision to include complaints made to persons unrelated to either the business enterprise or the enforcement of the wage laws, it certainly includes complaints made to the management of the employer.

The Attorney General's office has also interpreted G.L. c. 149, § 148A, as amended, to protect both employees who make complaints to the Attorney General and those who take "any other action to seek statutory wage and hour rights." Advisory 2004/3, at 5, Attorney General's fair labor and business practices division. Insofar as the Attorney General's office is the department charged with enforcing the wage and hour laws, its interpretation of the protections provided thereunder is entitled to substantial deference, at least where it is not inconsistent with the plain language of the statutory provisions. See Dahill v. Police Dep't of Boston, 434 Mass. 233, 239, 748 N.E.2d 956 (2001) (State agency charged with enforcement of statute entitled to "substantial deference" in interpretation of statute through its issued guidelines).¹²

The defendants' interpretation of § 148A, in addition to being contrary to its plain language, would discourage employees from bringing complaints to their employers' attention directly and attempting informally and amicably to resolve disputes regarding the wage laws. Rather, it would encourage employees immediately to lodge official complaints with the Attorney General's office and begin adversary proceedings. It would also encourage employers to terminate employees as soon as they caught wind of any internal concerns about potential wage violations, so that they might obviate potential penalties and retaliation claims under provisions of G.L. c. 149, § 148A. Such outcomes would directly contravene the purpose of the statute, to encourage enforcement of the wage laws by protecting employees who complain about violations of the same.

b. Summary judgment. Having concluded that the complaints made by the plaintiff servers to Sosnitsky fall within the actions protected under § 148A, we reverse the grant of summary judgment as to Kimball, and affirm the denial of summary judgment as to Smith and Porter.¹³ We decline, however, to conclude that the conduct of Sosnitsky, the maitre d', is covered by G.L. c. 149, § 148A.

The plain language of the first paragraph protects only actions taken...