PAUL JONES v. MONTACHUSETTS REGIONAL TRANSIT AUTHORITY & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-915

PAUL JONES

vs.

MONTACHUSETTS REGIONAL TRANSIT AUTHORITY & others. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In July 2021, the plaintiff, Paul Jones, brought this

action in the Superior Court alleging violations of the

Massachusetts Wage Act, G. L. c. 149, and the minimum wage law,

G. L. c. 151 (wage statutes), 2 by Montachusetts Regional Transit

Authority, as his employer, and the individual defendants, as

the employer's "agents" (collectively, MART). The plaintiff

alleged that MART misclassified him as an independent contractor

when he was actually MART's employee, and by doing so, deprived

him of certain financial benefits. MART moved to dismiss the

plaintiff's complaint arguing, inter alia, that principles of

issue preclusion foreclosed the plaintiff's claim that he was

1 Mohammed Khan, Bruno Fisher, Rebecca Badgley, Tamara
Shumovskaya, and David Dunn.
2 Specifically, G. L. c. 149, §§ 148, 148A-148C, and G. L.

c. 151, §§ 1-1B, 19.
MART's employee. Because we conclude that the dismissal of the

plaintiff's claims was premature, we vacate the judgment of

dismissal and remand the case to the Superior Court for further

proceedings.

Background. In May 2019, the plaintiff filed an action

against MART in Federal court alleging, inter alia, employment

discrimination in violation of Title VII of the Federal Civil

Rights Act of 1964 and G. L. c. 151B, § 4 (Federal action). See

Jones vs. Montachusett Regional Transit Auth., U.S. Dist. Ct.,

No. 4:19-CV-11093-TSH (D. Mass. Feb. 7, 2020). In July 2021,

MART moved for summary judgment in the Federal action on the

employment discrimination claims on the basis that the plaintiff

was not its employee. A Federal judge agreed and granted MART's

motion. See Jones vs. Montachusett Regional Transit Auth., No.

4:19-CV-11093-TSH (D. Mass. Mar. 28, 2022).

On August 31, 2021, while the Federal summary judgment

motion was pending, MART filed a motion in the Superior Court to

dismiss the present action, arguing, inter alia, that the

plaintiff was precluded from relitigating an issue already

before the Federal court -- specifically, his claim to be MART's

employee.

In May 2022, after a hearing, the judge granted MART's

motion to dismiss, explaining: "For the reasons set forth in

the [Federal summary judgment decision], plaintiff was never an

2
employee of defendant M.A.R.T., a finding that is dispositive of

all three claims in this action." The plaintiff filed a timely

appeal from that judgment.

Discussion. 1. Standard of review. "We review the

allowance of a motion to dismiss de novo. . . . We accept as

true the facts alleged in the plaintiff['s] complaint as well as

any favorable inferences that reasonably can be drawn from

them." Galiastro v. Mortgage Elec. Registration Sys., Inc., 467

Mass. 160, 164 (2014). "Factual allegations must be enough to

raise a right to relief above the speculative level . . .

[based] on the assumption that all the allegations in the

complaint are true (even if doubtful in fact)." Iannacchino v.

Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007). "While 'detailed

factual allegations' are not required at the pleading stage,

mere 'labels and conclusions' will not survive a motion to

dismiss." Burbank Apartments Tenant Ass'n v. Kargman, 474 Mass.

107, 116 (2016), quoting Iannacchino, supra.

2. Issue preclusion. MART's issue preclusion argument

relies on the Federal judge's determination that for the

purposes of both Title VII and G. L. c. 151B, MART established

on summary judgment that it was not the plaintiff's employer.

While we acknowledge that the plaintiff's employment status with

respect to MART was, as MART argues, an element of both the

3
plaintiff's Federal court claim and his claims in the Superior

Court action at issue in this appeal, 3 see Delia v. Verizon

Communications Inc., 656 F.3d 1, 4 (1st Cir. 2011); Somers v.

Converged Access, Inc., 454 Mass. 582, 589 (2009), we conclude

that issue preclusion was not a proper basis on which to dismiss

the plaintiff's Superior Court claims.

"The determination of an issue in a prior proceeding has no

preclusive effect where 'the party against whom preclusion is

sought [here, the plaintiff,] had a significantly heavier burden

of persuasion with respect to the issue in the initial action

than in the subsequent action [or] the burden has shifted to his

adversary.'" Jarosz v. Palmer, 436 Mass. 526, 532 (2002),

quoting Restatement (Second) of Judgments § 28 (4) (1982).

In the Federal action, the burden was on the plaintiff to

establish the existence of a genuine dispute about whether,

based on common-law principles of agency and control, he was an

employee of MART. See Lopez v. Massachusetts, 588 F.3d 69, 84-

85 (1st Cir. 2009). The Wage Act and Mass. R. Civ. P. 12 (b),

365 Mass. 754 (1974), however, provide for different standards.

The statute "sets forth a presumption that 'an individual

performing any service' for a putative employer 'shall be'

3 We also acknowledge that the motion judge could properly look
to the Federal summary judgment decision in deciding the motion.
See Jarosz v. Palmer, 436 Mass. 526, 530 (2002).

4
considered an 'employee' for purposes of the wage statutes."

Patel v. 7-Eleven, Inc., 489 Mass. 356, 360 (2022), quoting

G. L. c. 149, § 148B. If the plaintiff makes that showing, the

burden shifts to the defendant to rebut the presumption. See

id. at 360-361. Here, the plaintiff's allegation that he

provided transportation services to MART had to be taken as true

and entitled him to the statutory presumption that he was an

"employee" of the entity to which he provided those services --

MART. See Somers, 454 Mass. at 590. The burden of proof then

shifted to the putative employer, MART. See id. at 590-591;

G. L. c. 149, § 148B. Because the plaintiff's burden was higher

in the Federal action, and the burden shifted to MART in the

later Superior Court action, application of issue preclusion was

erroneous. 4

3. Sufficiency of claims. Because the motion to dismiss

was granted on issue preclusion grounds, the judge did not reach

the question whether the complaint otherwise stated a claim.

Specifically, the judge did not address whether the plaintiff's

"allegations plausibly suggest[ed]," Iannacchino, 451 Mass. at

4 To conclude otherwise "would be to hold, in effect, that the
losing party in the first action would also have lost had a
significantly different burden been imposed. . . . Since the
process by which the issue was adjudicated cannot be
reconstructed on the basis of a new and different burden,
preclusive effect is properly denied." Restatement (Second) of
Judgments § 28 comment f (1982).

5
636, (1) that MART employed him for the purposes of the wage

statutes, notwithstanding MART's argument that its contract was

with Commonwealth Community Recovery Division, Inc. (CCRD) 5 and

not the plaintiff, individually; or (2) if the plaintiff's

claims were sufficient in that regard, whether he made out a

claim for MART's violation of the wage statutes. 6 Reviewing the

complaint de novo, we are satisfied that it meets the required

standard. See id.

a. Plaintiff as MART's employee. As we have noted, the

plaintiff's allegation that he provided transportation services

to MART entitled him to the statutory presumption that he was

MART's "employee." See Somers, 454 Mass. at 590. This was

sufficient to meet the requirements of Iannacchino, 451 Mass. at

636.

MART's reliance on its contract with the plaintiff's

corporation, CCRD, in which the plaintiff is identified as an

independent contractor, does not alter our conclusion. A

business cannot avoid liability as an employer under the wage

5 The plaintiff alleged that MART would only hire him through a
corporate entity and using a contract stating that he was an
independent contractor. He alleged that he formed CCRD for this
purpose, but that he was an independent contractor in name only.
6 MART additionally argued that the complaint failed to state a

claim against the individual defendants and that venue was
improper in Suffolk Superior Court. On appeal, MART does not
argue those points, so we do not address them here. See Smith
v. Bell Atl., 63 Mass. App. Ct. 702, 725 n.8 (2005).

6
statutes merely by contracting through an intermediary

corporation. See Chambers v. RDI Logistics, Inc., 476 Mass. 95,

109 (2016). Dismissal was thus unwarranted on the basis of the

plaintiff's employee status.

b. Wage statute violations. "A legislative purpose behind

the independent contractor statute is to protect employees from

being deprived of the benefits enjoyed by employees through

their misclassification as independent contractors." Somers,

454 Mass. at 592. As we have discussed, the plaintiff alleged

facts (and not merely conclusions or restatements of the wage

statutes themselves) sufficient to entitle him to the

presumption that he had an employer-employee relationship with

MART and, at this point in the litigation, MART has not rebutted

that presumption.

Additionally, the plaintiff alleged in his complaint that

by misclassifying him as an independent contractor, MART

improperly deprived him of the benefits of employee status

including vacation pay, overtime pay, and employer payment of

workers' compensation and commercial automobile liability

insurance coverage. 7 A plaintiff who prevails on a

7 We acknowledge the plaintiff's allegation that MART
intentionally misclassified him and other employees as
independent contractors in order to save money. We need not
decide the point here. See Somers, 454 Mass. at 591 ("None of
the statutory criteria speaks of the employer's intent; rather,
all speak of the nature of the service provided").

7
misclassification claim is entitled under G. L. c. 149, § 150,

to recover "any damages incurred" (emphasis added), including

any lost wages or benefits attributable to the

misclassification. Somers, 454 Mass. at 594. Here, the

complaint alleged damages potentially recoverable under the wage

statutes, including lost hourly wages for the time spent waiting

between rides; expenses incurred for commercial automobile

liability insurance coverage, workers' compensation insurance,

vehicle maintenance, and other costs ordinarily paid by an

employer; and penalties in the form of withheld wages. 8 See

Depianti v. Jan-Pro Franchising Int'l, Inc., 465 Mass. 607, 620

(2013) (employment statutes such as independent contractor

statute "are to be liberally construed, 'with some imagination

of the purposes which lie behind them'" [citation omitted]);

Awuah v. Coverall N. Am., Inc., 460 Mass. 484, 493-494 (2011)

(misclassified employee's damages include amounts paid by

employee that employer "statutorily must bear," i.e., workers'

compensation insurance); Somers, supra, at 584 (misclassified

employee's damages "equal the value of wages and benefits [the

employee] should have received as an employee, but did not").

8 The plaintiff alleged $20,000 of withheld pay or wage
deductions due to fines. As the plaintiff claims, G. L. c. 149,
§ 148, "prohibits wage deductions associated with an employer's
unilateral determination of an employee's fault and damages."
Camara v. Attorney Gen., 458 Mass. 756, 757 (2011).

8
MART's factual disagreements with the plaintiff's allegations

were not a basis for dismissing the complaint. See Osborne-

Trussell v. Children's Hosp. Corp., 488 Mass. 248, 254-255

(2021).

4. Statutory argument. On appeal, MART contends not only

that it did not employ the plaintiff, but that it was

statutorily prohibited from doing so by G. L. c. 161B, §§ 6 (f),

8, and 25. To the extent the arguments were not waived, 9 see

Amherst Nursing Home, Inc. v. Commonwealth, 398 Mass. 850, 852

(1986) (generally court will not consider issue raised for first

time on appeal, particularly where issue "has been on hand from

the inception of the case"); Rule 9A (a) (1) of the Rules of

Superior Court (2022) (party that files motion must submit

written memorandum stating reasons and supporting authorities

why motion should be allowed), we are not persuaded.

Given the purpose of G. L. c. 161B -- to create a series of

regional transit authorities across the State, see G. L.

c. 161B, §§ 2, 6, 25 -- we do not agree that by including in

§§ 6 (f) and 8 certain enumerated powers vested in transit

9 MART raised the applicability of G. L. c. 161B, §§ 6 (f) and
(8), for the first time in the third of three hearings on its
motion to dismiss, and G. L. c. 161B, § 25, for the first time
on appeal. See McCullen v. Coakley, 571 F.3d 167, 182 n.3 (1st
Cir. 2009), cert. denied, 599 U.S. 1005 (2010) ("avoiding waiver
requires more than a hint that a particular theory may be
lurking; it necessitates some developed argumentation addressed
to that particular theory").

9
authorities like MART, the Legislature intended to exclude all

others. Had the Legislature intended to prohibit authorities in

MART's position from hiring drivers in the manner the plaintiff

alleges MART hired him, it could have said so explicitly. It

did not do so, and we decline to "read into the statute a

provision which the Legislature did not see fit to put there." 10

City Elec. Supply Co. v. Arch Ins. Co., 481 Mass. 784, 789

(2019), quoting National Lumber Co. v. United Cas. & Sur. Ins.

Co., 440 Mass. 723, 727 (2004).

Second, even if MART could not permissibly hire the

plaintiff as the plaintiff alleges that it did, we assume that

the allegations of the complaint are true. To the extent that

MART's actions in hiring the plaintiff might have exceeded its

authority under G. L. c. 161B, MART has not demonstrated that,

10Nor has MART demonstrated that the plaintiff provided a "mass
transportation service" for the purposes of G. L. c. 161B, § 25,
although we will assume for the sake of argument that CCRD did.

10
as a matter of law, its actions would bar the plaintiff's claims

against it.

Conclusion. The judgment of dismissal is vacated, and the

case is remanded to the Superior Court for further proceedings.

So ordered.

By the Court (Wolohojian,
Singh & Hand, JJ. 11),

Clerk

Entered: August 14, 2023.

11 The panelists are listed in order of seniority.

11