Harrison v. Mass. Bay Transp. Auth.

CRAIG HARRISON AND BARBARA RUCHIE, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY

Docket: 1884CV02939-BLS2

Commonwealth of Massachusetts Superior Court

June 18, 2020

Dates: June 18, 2020

Present: /s/Kenneth W. Salinger Justice of the Superior Court

County: SUFFOLK, ss.

Keywords: MEMORANDUM AND ORDER ALLOWING DEFENDANTS' PARTIAL MOTION TO DISMISS

Craig Harrison and Barbara Ruchie were hired by staffing agencies to provide information technology services to the Massachusetts Bay Transportation Authority. They claim that the MBTA is liable under the independent contractor statute, or under a common-law unjust enrichment theory, because it should have classified them (and other IT workers) as employees and given them benefits that are available to MBTA employees. Harrison also asserts a retaliation claim, alleging that he complained of being misclassified as an independent contractor and that in response the MBTA fired him.

The Court will allow the MBTA's partial motion to dismiss these three claims.¹

The two statutory claims, for misclassification as an independent contractor and for retaliation, are barred by the Commonwealth's sovereign immunity. The Court therefore lacks subject matter jurisdiction over these claims and will dismiss them under Mass. R. Civ. P. 12(b)(1) without prejudice. See Abate v. Fremont Inv. & Loan, 470 Mass. 821, 836 (2015).

The unjust enrichment count fails to state a claim upon which relief can be granted because the parties' rights and obligations were defined by valid contracts. This is a decision on the merits; the Court will therefore dismiss this claim under Rule 12(b)(6) with prejudice. See Mestek, Inc. v. United Pacific Ins. Co., 40 Mass. App. Ct. 729, 731, rev. denied, 423 Mass. 1108 (1996).

1. Misclassification Claim. In count I of their second amended complaint, Plaintiffs contend that the MBTA violated G.L. c. 149, § 148B (the "independent contractor statute") by treating them as independent contractors rather than as employees. Harrison and Ruchie claim that, as a result of being misclassified as independent contractors, they were improperly denied many benefits available to MBTA employees, including paid time off, travel expense reimbursements, various kinds of insurance, and retirement benefits.

The Court concludes that it lacks subject matter jurisdiction over this claim, and thus must dismiss it under Rule 12(b)(1), because the claim is barred by the legal doctrine of sovereign immunity. See generally Nordberg v. Commonwealth, 96 Mass. App. Ct. 237, 244 (2019) ("Whether a defendant has sovereign immunity raises questions of subject matter jurisdiction.").²

It is now well established that the MBTA shares the Commonwealth's sovereign immunity. Neither the independent contractor statute nor the MBTA's enabling act clearly and unequivocally waives the MBTA's sovereign immunity as to liability for allegedly misclassifying a worker as an independent contractor rather than as an employee.

1.1. Sovereign Immunity. The principle or doctrine of sovereign immunity means that the Commonwealth, as well as its agencies and instrumentalities, cannot be sued in Massachusetts courts "except with its consent," and that when the Commonwealth gives such consent it can be sued "only in the manner and to the extent expressed [by] statute." Smith v. Massachusetts Bay Transp. Auth., 462 Mass. 370, 373 (2012) (Commonwealth and agencies), quoting Town of Boxford v. Massachusetts Highway Dep't, 458 Mass. 596, 601 (2010); accord Brown v. Office of Comm'r of Prob., 475 Mass. 675, 677 (2016) (Commonwealth and instrumentalities). "Among other functions, the doctrine 'protects the public treasury against [depletion by] money judgments.' " Smith, supra, quoting New Hampshire Ins. Guar. Ass'n v. Markem Corp., 424 Mass. 344, 351 (1997).

The MBTA is covered by the Commonwealth's sovereign immunity. Since the MBTA is a political subdivision of the Commonwealth, and is funded in large part from the Commonwealth's treasury and by the cities and towns that it serves, "[u]nder the doctrine of sovereign immunity ... the MBTA is not amenable to suit without the Commonwealth's express consent." Smith, 462 Mass. at 373; accord Lavecchia v. Massachusetts Bay Transp. Auth., 441 Mass. 240, 244 (2004) (enabling act provision making MBTA liable for torts "was significant because, without such a provision the MBTA, as a State entity, would have been immune from tort actions under the then prevailing law of sovereign immunity").

Sovereign immunity will bar claims against the Commonwealth, and thus against the MBTA, absent a "clear" and "unequivocal" statutory waiver of that immunity. Sheriff of Suffolk Cty. v. Jail Officers & Employees of Suffolk Cty., 465 Mass. 584, 597-598 (2013). "The rules of construction governing statutory waivers of sovereign immunity are stringent." Boston Med. Ctr. Corp. v. Secretary of Exec. Office of Health & Human Svcs., 463 Mass. 447, 454 (2012), quoting Ware v. Commonwealth, 409 Mass. 89, 91 (1991). The Legislature can only be said to have waived sovereign immunity "where consent to suit is 'expressed by the terms of a statute, or appearfs] by necessary implication from them.' " Id., quoting Lopes v. Commonwealth, 442 Mass. 170, 175-176 (2004). "Waiver of sovereign immunity will not be lightly inferred." Lopez v. Commonwealth, 463 Mass. 696, 701 (2012).

The Legislature has not waived the Commonwealth's or the MBTA's sovereign immunity with respect to liability under the independent contractor statute, either explicitly or by necessary implication. Nothing in G.L. c. 149, § 148B, or in c. 149 as a whole, says or implies that the Commonwealth or the MBTA may be sued and held liable under that independent contractor statute.

The Court recognizes that "remedial statutes such as the independent contractor statute are 'entitled to liberal construction.' " Depianti v. Jan-Pro Franchising Int'l, Inc., 465 Mass. 607, 620 (2013), quoting Batchelder v. Allied Stores Corp., 393 Mass. 819, 822, 473 N.E.2d 1128 (1985).

However, Plaintiffs' argument that one should therefore read § 148B as implicitly waiving the Commonwealth's sovereign immunity is without merit. The Commonwealth is immune from suit under a broad remedial statute unless the statute waives sovereign immunity expressly or by necessary implication; the mere passage of a remedial statute that protects workers or citizens in general is not enough to waive sovereign immunity. See Commonwealth v. ELM Med. Labs., Inc., 33 Mass. App. Ct. 71, 77-79 (1992) (though Massachusetts Civil Rights Act, G.L. c. 12, §§ 11H-11I, is remedial statute entitled to liberal construction, it does not waive Commonwealth's sovereign immunity and thus does not apply against Commonwealth); see also M. O'Connor Contracting, Inc. v. City of Brockton, 61 Mass. App. Ct. 278, 283-285 (2004) (sovereign immunity bars claim under G.L. c. 93A against governmental entity arising from performance of governmental function).

In other statutes enacted to protect employees, the Legislature expressly provided that some or all Commonwealth employees are covered by and may enforce the statute. That waives sovereign immunity by necessary implication.

For example, "the antidiscrimination statute, G.L. c. 151B, waives the sovereign immunity of the 'Commonwealth and all political subdivisions ... thereof' by including them in the statutory definition of persons and employers subject to the statute." Bain v. City of Springfield, 424 Mass. 758, 763 (1997), quoting G.L. c. 151B, § 1(1) and (5).

Similarly, the Wage Act provides that the Commonwealth must pay timely wages to every "mechanic, workman, and laborer" and to employees of a "penal or charitable institution," that every city and town must pay timely wages to all employees, and that any employee aggrieved by a violation of that statute may bring a civil action to recover their unpaid wages. See G.L. c. 149, §§ 148 and 150. These statutes waive sovereign immunity as to such claims by necessary implication. Compare Plourde v. Police Dep't of Lawrence, 85 Mass. App. Ct. 178, 181 (2014) (rejecting sovereign immunity defense because municipalities are expressly subject to Wage Act) with Newton v. Comm'r of Dep't of Youth Servs., 62 Mass. App. Ct. 343, 347-349 (2004) (Wage Act does not apply to Commonwealth employee who was not a mechanic, workman, or laborer, and did not work in a penal or charitable institution).

In contrast, Plaintiffs have not identified any statute that expressly or by necessary implication waives sovereign immunity with respect to a claim against the MBTA under the independent contractor statute. 1.2. "Sue and Be Sued" Provision. Plaintiffs argue that the Legislature waived the MBTA's sovereign immunity as to claims of all kinds by providing, in the MBTA's enabling statute, that the MBTA may "sue and be sued." See G.L. c. 161A, § 2. The Court is not persuaded.

It is hard to square this argument with existing case law regarding the MBTA's sovereign immunity. From the time it was established, the MBTA has always been an entity that could "sue and be sued" in its own name. See St.1964, c. 563, § 18 (inserting G.L. c. 161A, § 2). Nonetheless, as discussed above, the Supreme Judicial Court has repeatedly held that the MBTA would not be subject to tort liability without a clear statutory waiver of sovereign immunity as to tort claims. See Smith, 462 Mass. at 373; Lavecchia, 441 Mass. at 244. Those rulings would be incorrect if the "sue and be sued" provision was a global waiver of the MBTA's sovereign immunity.

Plaintiffs note that these decisions do not expressly say whether the "sue and be sued" provision waives sovereign immunity. The SJC was not asked to consider and did not directly address this question in Smith and Lavecchia.

It is therefore open to Plaintiffs to argue, as they do, that these decisions are not binding precedent as to this precise issue. "The...