Massachusetts Bay Transportation Authority vs. Labor Relations Commission & another

Stephen Trychon vs. Massachusetts Bay Transportation Authority. No. 15-P-1316. Suffolk. May 16, 2016. September 15, 2016. Present: Agnes, Massing, & Kinder, JJ. Massachusetts Bay Transportation Authority. Practice. Civil. Motion to dismiss. Employment. Termination, Retaliation. A Superior Court judge erred in dismissing the plaintiff’s complaint charging the Massachusetts Bay Transportation Authority (MBTA) with violations of G. L. c. 149, § 185, the Massachusetts public employee whistleblower statute, where the plaintiff, a former managerial employee of the MBTA, alleged sufficient facts to plausibly show that he had engaged in protected activities (i.e., reporting contract fraud, unsafe track conditions, and the high incidence of eye injuries among employees), and that those activities played a substantial or motivating part in the MBTA’s decision to terminate his employment. [254-260] Civil action commenced in the Superior Court Department on February 11, 2014. A motion to dismiss was heard by Heidi E. Brieger, J. Kevin G. Powers for the plaintiff. Jeffrey A. Dretler for the defendant. Agnes, J. In this appeal, we must determine the legal sufficiency of Stephen Trychon’s complaint charging the Massachusetts Bay Transportation Authority (MBTA) with violations of G. L. c. 149, § 185, the Massachusetts public employee whistle-blower statute (whistleblower statute). A Superior Court judge allowed the MBTA’s motion, pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), to dismiss the complaint. We conclude that Trychon has stated a plausible claim for relief. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Accordingly, we reverse the judgment. 1. Standard of review. We review the order dismissing the complaint de novo, accepting the truth of all factual allegations and drawing all reasonable inferences in Trychon’s favor. See Glovsky v. Roche Bros. Supermarkets, Inc., 469 Mass. 752, 754 (2014). A complaint is sufficient to withstand a motion to dismiss if the factual allegations “plausibly suggest” an entitlement to relief, raising the right to relief “above the speculative level.” Harrington v. Costello, 467 Mass. 720, 724 (2014), quoting from Iannacchino, supra. See Mass.R.Civ.P. 8(a)(1), 365 Mass. 749 (1974). The factual content is sufficient if it “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 23 (1st Cir. 2014), quoting from Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and “it. . . raise[s] a reasonable expectation that discovery will reveal evidence [of the alleged misconduct].” Lopez v. Commonwealth, 463 Mass. 696, 712 (2012), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). In conducting the “context-specific” inquiry required by the plausibility standard, we must “draw on [our] judicial experience and common sense.” Lopez, supra, quoting from Ashcroft, supra at 679. “The critical question is whether the claim, viewed holistically, is made plausible by ‘the cumulative effect of the factual allegations’ contained in the complaint.” A.G. v. Elsevier, Inc., 732 F.3d 77, 82 (1st Cir. 2013), quoting from Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 14 (1st Cir. 2011). 2. Background. We recite the allegations of Trychon’s complaint, along with reasonable inferences that may be drawn from those allegations. Although merely allegations, we must accept them as true for the purposes of reviewing the dismissal of a complaint. See Harrington, supra. Trychon’s employment. The holder of a master’s degree in business administration, Trychon worked in various management positions for the MBTA from his date of hire on March 30, 2009, until April 10, 2013. During that time period, he was promoted twice and received excellent performance reviews. His job duties and responsibilities grew over time. Trychon alleges that he made it his mission to eliminate the causes of the MBTA’s $180 million debt. For example, Trychon brought in consultants to review the MBTA’s station cleaning program, working with them on creating new, more cost-effective contract specifications. As a result of his efforts, Trychon asserts that he saved taxpayers $18 million over a five-year period. According to Trychon, with the exception of his direct superior, Michael Turcotte, MBTA management was not interested in changing the “culture of waste and inefficiency.” Contract fraud investigation. Assigned by Turcotte on or about February 10, 2011, to investigate possible contract fraud, Trychon alleges he uncovered two improprieties at the MBTA: the illegal extensions of expired contracts and the practice of dividing large contracts and purchases into smaller ones to avoid the necessity of management approval. Trychon reported his findings to Turcotte and to Jonathan Davis, the then acting general manager of the MBTA (GM) and former head of the procurement department. An official fraud investigation revealed that the root cause of the fraud was the procurement department. As a result of the investigation, at least one employee was fired. Informed by the investigating accountant that the evidence of fraud in the procurement department “ran very deep” and that many more employees would be implicated if the investigation continued, Davis stopped the investigation. Eyewear policy. In or about May, 2011, Trychon noticed a significant number of eye injuries sustained by MBTA employees. As a result of an investigation, Trychon drafted and implemented a new eyewear policy that required all E & M employees performing potentially hazardous duties to wear protective equipment. After Trychon and Turcotte discovered general disregard of that policy by E & M employees during a department-wide safety audit, a directive was issued requiring all E & M managers to conduct daily safety inspections and to file daily reports. On or about January 25, 2012, an employee who reported to Patrick Kineavy, the director of MOW, was disciplined for refusing to put on the required eyewear as instructed by Trychon. When Trychon observed continuing noncompliance with the policy among Kineavy’s group, Kineavy received a written warning, was placed on a thirty-day corrective action plan, and was required to document and report his safety-compliance inspections. When asked to produce proof of his safety-compliance inspections, Kineavy was unable to do so, and later provided Trychon with twelve allegedly fabricated safety observations. In or about April, 2012, Trychon wrote a memorandum to Turcotte recommending that Kineavy be removed from his director duties. Acting GM Davis and MBTA human resources director William Perez rejected that recommendation independently submitted to them by Turcotte. Kineavy’s safety-compliance reporting duties were switched from Trychon to Turcotte. In August, 2012, Turcotte sought in writing Kineavy’s termination based upon Kineavy’s verbal threat, failure to enforce the eyewear policy, fraudulent reporting, and continued poor performance reviews. State Secretary of Transportation Richard Davey and acting GM Davis stepped in and created a new job for Kineavy with minimal responsibilities and better pay. They also switched Kineavy’s reporting duties to Sean McCarthy, “an old South Boston buddy of [Kineavy].” Suspected time fraud. The complaint further alleges that “[i]t was reported” to Trychon and Turcotte that “very close friends” of Kineavy and Matthew McGuire, the deputy director of MOW, did not punch in for work by hand scanner as required by MBTA policy, but were still being paid. Trychon determined that a supervisor in SMI “was taping or was allowing his name to be taped” on time sheets without properly verifying that the employees had actually reported for work. Trychon decided to conduct a full investigation of E & M to determine the extent of the practice. News of the investigation leaked, and the original records of Kineavy and McGuire were stolen. Unsafe track conditions. Trychon claims that, pursuant to State regulation, the MBTA is required to “update and create new track standards every two (2) years.” In or about August, 2012, Try-chon discovered that the last updates were made in 2008. Trychon directed Kineavy and McGuire to bring the MBTA into regulatory compliance as soon as possible. To that end, Trychon approved the hiring of a highly-regarded, independent track inspector, HNTB. The report issued by HNTB warned the MBTA of alarming safety conditions needing correction that dated back to HNTB’s previous inspection in 2006. Neither Kineavy nor McGuire had addressed the unsafe track conditions since 2006. McGuire steered the report to himself and did not disclose it to Trychon. A concerned member of McGuire’s staff provided copies of the HNTB report to Trychon, who in turn passed copies on to Tur-cotte and to his subordinates, directors Joseph McNall and Andrew Baker. Asked by Turcotte why he had hidden the results of the report, McGuire allegedly became enraged and accused Turcotte and Trychon of “having an agenda” against him and Kineavy. When Turcotte requested that Perez “relieve [McGuire] of his duties,” Perez stated that he would transfer McGuire to the MBTA’s safety department. McGuire informed his boss, Baker, that “[b]ig changes are coming, and he (McGuire) is not going anywhere.” Baker reported the comment to Trychon and to Turcotte. Adverse employment actions. The complaint also alleges that following Turcotte’s “functional[ ] demotion],” on March 1, 2013, by the new GM, Beverly Scott, Turcotte resigned. On April 9, 2013, Trychon received an unsigned card that stated, “ ‘Good luck.’ ‘Enjoy your layoff!’ and ‘Fuck off.’ ” On the following day, Perez informed Trychon that he was laid off. At the time, Trychon had not yet completed his investigation of the suspected time fraud. 3. Discussion. In general, G. L. c. 149, § 185, protects public employees from retaliation by their employers for disclosing to a supervisor or public body workplace activities, policies, or practices that the employee reasonably believes violate the law, or pose a risk to public health, safety, or the environment. There is little decisional law by our appellate courts construing § 185’s provisions. In contrast, the Federal courts have had the opportunity to construe and apply § 185 on a number of occasions. While we are required to make our own judgment about the intent of the Legislature in adopting the statute, and are not bound by interpretations reached by Federal courts, we regard those decisions as persuasive authority and, in this case, find them to be instructive. See Fidler v. E. M. Parker Co., 394 Mass. 534, 545 (1985). There are three elements to a whistleblower claim brought under G. L. c. 149, § 185. The plaintiff-employee must prove that (1) the employee engaged in a protected activity; (2) participation in that activity played a substantial or motivating part in the retaliatory action; and (3) damages resulted. See Welch v. Ciampa, 542 F.3d 927, 943 (1st Cir. 2008); Taylor v. Freetown, 479 F. Supp. 2d 227, 241 (D. Mass. 2007). The plausibility standard, as clarified by the United States Court of Appeals for the First Circuit, does not require the pleading of specific facts to establish each element of the prima facie case. See Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir. 2013) (noting that “prima facie [case] is an evidentiary standard, not a pleading standard”). The prima facie elements, however, are relevant “background against which a plausibility determination should be made.” Ibid. a. Protected activity. Only certain acts are protected by § 185, including, as relevant in this case, disclosures (or threatened disclosures) to a supervisor of and objections to an employer’s activity, policy, or practice that the employee reasonably believes violates the law or poses a risk for public health or safety. See G. L. c. 149, § 185, (3). We construe the allegations of the complaint as resting on both statutory subsections. Trychon has alleged sufficient facts to plausibly show that he engaged in one or more activities protected by § 185. First, following his investigation into alleged contract fraud, he reported two practices (the extension of expired contracts and the splitting of contracts) that he reasonably could have believed violated the public bidding law. See G. L. c. 149, § 44J(1), (3). Compare Romero v. UHS of Westwood Pembroke, Inc., 72 Mass. App. Ct. 539, 541 & n.3 (2008). Second, even if he was mistaken about the track inspection and maintenance laws, Trychon reasonably could have believed, based on HNTB’s 2012 report and on common sense, that the MBTA’s failure to correct the alarming track conditions for six years posed a risk to the public safety within the meaning of § 185. His disclosures to Turcotte of the updated HNTB report, the nonfea-sance by Kineavy and McGuire, and the alleged cover-up by McGuire qualified as protected activity for purposes of pleading his § 185 claim. We agree with the MBTA that the phrase “a risk to public health, safety or the environment,” as it appears in § 185, means a risk to public health, public safety, or the environment. However, drawing on our judicial experience and common sense, we are not persuaded by the MBTA’s further argument that Try-chon’s disclosures to his supervisors about the high incidence of eye injuries among employees, and the failure of certain managers to enforce the MBTA’s policy designed to reduce the number of such injuries is not, as a matter of law, a disclosure relating to the public health or public safety. Disclosures relating to workplace activities, policies, or practices that have a significant impact upon the cost of public employment, including healthcare costs, may diminish the availability of limited public funds for other pressing public needs, including public needs relating to health and safety, and therefore may be protected under the whistleblower statute. The MBTA is dependent upon public funding from the Commonwealth and its cities and towns to sustain its operations. See, e.g., St. 2015, c. 46, § 2E (line items 1595-6368 and 1595-6369 of the general appropriations law for fiscal year 2016, transferring public funds to accounts earmarked to support the operation of the MBTA). One operational cost of the MBTA is the payment of benefits to employees injured on the job because the MBTA is a self-insurer. See McCarthy’s Case, 66 Mass. App. Ct. 541, 541, 545-546 (2006). To the extent that the MBTA uses taxpayer dollars to compensate its injured employees, it diminishes the availability of those funds to be used for other purposes relating to public health and public safety. At this early stage of the proceedings, we cannot say, as a matter of law, that Trychon has not stated a plausible claim for relief with regard to the MBTA’s eye injury policy. On the other hand, the allegations relating to the suspected time fraud were too vague to support an inference that Trychon qualified for protected whistleblower status. An unnamed third party reported the violation of the hand scanner policy to Trychon and to Turcotte. Trychon, it was alleged, took two actions: he determined that a particular supervisor in SMI was not verifying employee time and he commenced an “E&M-wide” investigation. While a reasonable inference of fraudulent time reporting involving Kineavy and McGuire could be drawn, these sparse facts do not support an inference that before his layoff, Trychon engaged in any protected activity as to the suspected time fraud. No disclosure of, or threat to disclose, suspected time fraud to a supervisor may reasonably be inferred from these facts. See Estock v. Westfield, 806 F. Supp. 2d 294, 309 (D. Mass. 2011) (“The [whistleblower] statute prohibits retaliatory conduct on the part of an employer, not preventative conduct”). Although Trychon’s allegations concerning his conduct with respect to the suspected time fraud do not amount to protected activity, his other allegations of whistleblowing at this stage of the litigation are sufficient to withstand dismissal for failure to state a claim. b. Causation. We conclude that Trychon’s complaint, viewed as a whole, sufficiently alleged a causal connection between the protected activities and a retaliatory layoff to satisfy the plausibility standard. At the time of his discharge, Trychon’s trajectory was on the rise. He had evidently proven himself to be an effective and dedicated public employee, saving taxpayers millions of dollars, identifying fraudulent contracts, and exposing alarming track conditions that posed a risk to public safety. He had been promoted twice, and the scope of his job responsibilities was expanding. Generally, unless adverse conditions require a different course of action, employers who follow sound business practice do not select employees with excellent performance records for termination. Likewise, employers who follow sound business practice do not ordinarily transfer, shield, or reward employees whose poor performance or wrongful acts warrant termination, as the MBTA allegedly did according to the complaint. Trychon alleged adequate facts plausibly suggesting retaliatory animus harbored by MBTA management. The narrative of the complaint suggests a continuing pattern of opposition and hostility to Trychon, and to his mainstay Turcotte, over an extended period of time. Trychon claims that Kineavy and McGuire disregarded his directives, left fraudulent reports in his mailbox, hid HNTB’s alarming inspection report, and stole original records to thwart his time fraud investigation. Kineavy allegedly threatened to “fix” Turcotte “for good,” while McGuire accused Trychon and Turcotte of having a personal agenda against him and Kineavy. The retaliatory animus supposedly extended to the upper echelons of management. One could reasonably infer that acting GM Davis did not appreciate Trychon’s embarrassing disclosure of wrongdoing in a department that he personally had overseen, and that he wanted Trychon and his spotlight gone. After having shelved the investigation to avoid the implication of more employees in the contract fraud, Davis evidently supported the insubordinate and hostile Kineavy over Trychon and Turcotte. Indeed, it could be inferred that Davis, supported by Secretary Davey, rewarded Kineavy with an objectively better job for his opposition. The complaint alleges that the consequence of McGuire’s six years of nonfeasance as to track safety and his nondisclosure of the disturbing HNTB report was a planned transfer to the safety department. The treatment afforded to Kineavy and to McGuire plausibly suggested that they had influence far higher than their subordinate positions in the organizational chart. In short, for pleading purposes, the hostile acts and statements by Kineavy and McGuire, the unnatural protection afforded those individuals, and acting GM Davis’s suppression of the official contract fraud investigation initiated because of Trychon permit a plausible inference that Trychon’s protected activities played a substantial or motivating part in the decision to terminate him. Given the continuing pattern of opposition faced by Trychon, the temporal gap between Trychon’s protected conduct and his termination was not so attenuated as to fail to meet the plausibility standard. Trychon did not identify the individual who made the final decision to discharge him. Where, as here, it could reasonably be inferred that Davis and managers under his protection influenced that decision, the omission did not warrant the dismissal of the complaint. See Mole v. University of Mass., 442 Mass. 582, 598-600 (2004). In the alternative, the MBTA urges us to affirm the judgment based on the “normal job duties” exclusion. That doctrine limits employer liability where the employee’s disclosure to a supervisor occurred as part of

Cristina Barbuto vs. Advantage Sales and Marketing, LLC, & another. Suffolk. March 9, 2017. July 17, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Marijuana. Anti-Discrimination Law. Handicap, Employee, Termination of employment. Employment. Discrimination, Termination. Practice. Civil. Motion to dismiss. Discussion of St. 2012, c. 369, which states that there should be no punishment under State law for qualifying patients for the medical use of marijuana, and of the status of marijuana under Federal law. [459-460] In a civil action arising from the plaintiffs termination from employment after she tested positive for marijuana as a result of her lawful medical use of marijuana, a Superior Court judge erred in dismissing the counts of the complaint alleging discrimination in employment on the basis of handicap, where the plaintiff was a “handicapped person” within the meaning of G. L. c. 15IB; where the plaintiff was capable of performing the essential functions of her position with some form of accommodation; and where an accommodation that would permit the plaintiff to continue to be treated with medical marijuana in her home was not per se unreasonable, despite marijuana being illegal to possess under Federal law, and, in any event, the employer owed the plaintiff an obligation, before terminating her employment, to participate in an interactive process with her to determine whether there was an alternative, equally effective medication she could use that was not prohibited under the employer’s drug policy. [460-468] In a civil action arising from the plaintiffs termination from employment after she tested positive for marijuana as a result of her lawful medical use of marijuana, a Superior Court judge properly dismissed the count of the complaint alleging violation of St. 2012, c. 369, which states that there should be no punishment under State law for qualifying patients for the medical use of marijuana, where that statute did not create a separate private cause of action for aggrieved employees [468-470]; likewise, the judge properly dismissed the count of the complaint alleging a claim of wrongful termination in violation of the public policy of protecting an employee’s right to use marijuana for medicinal purposes, where a competent employee has a cause of action for handicap discrimination under such circumstances [470-471], Civil action commenced in the Superior Court Department on September 4, 2015. A motion to dismiss was heard by Robert N. Tochka, J. The Supreme Judicial Court granted an application for direct appellate review. Matthew J. Fogelman (Adam D. Fine also present) for the plaintiff. Michael K. Clarkson (M. Tae Phillips also present) for the defendants. The following submitted briefs for amici curiae: Elizabeth Milito, of the District of Columbia, & Gregory D. Cote for NFIB Small Business Legal Center. Reid M. Wakefield & Constance M. McGrane for Massachusetts Commission Against Discrimination. David A. Russcol & Chelan Tiwari for Massachusetts Employment Lawyers Association & others. Joanne Meredith Villaruz. Gants, C.J. In 2012, Massachusetts voters approved the initiative petition entitled, “An Act for the humanitarian medical use of marijuana,” St. 2012, c. 369 (medical marijuana act or act), whose stated purpose is “that there should be no punishment under [Sjtate law for qualifying patients. ... for the medical use of marijuana.” Id. at § 1. The issue on appeal is whether a qualifying patient who has been terminated from her employment because she tested positive for marijuana as a result of her lawful medical use of marijuana has a civil remedy against her employer. We conclude that the plaintiff may seek a remedy through claims of handicap discrimination in violation of G. L. c. 15IB, and therefore reverse the dismissal of the plaintiffs discrimination claims. We also conclude that there is no implied statutory private cause of action under the medical marijuana act and that the plaintiff has failed to state a claim for wrongful termination in violation of public policy, and therefore affirm the dismissal of those claims. Background. “We review the allowance of a motion to dismiss de novo.” Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). In deciding whether a count in the complaint states a claim under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), we accept as true the allegations in the complaint, draw every reasonable inference in favor of the plaintiff, and determine whether the factual allegations plausibly suggest an entitlement to relief under the law. Id. As alleged in the complaint, the plaintiff, Cristina Barbuto, was offered an entry-level position with the defendant Advantage Sales and Marketing, LLC (ASM), in the late summer of 2014, and accepted the offer. An ASM representative later left a message for Barbuto stating that she was required to take a mandatory drug test. Barbuto told the ASM employee who would be her supervisor that she would test positive for marijuana. Barbuto explained that she suffers from Crohn’s disease, a debilitating gastrointestinal condition; that her physician had provided her with a written certification that allowed her to use marijuana for medicinal purposes; and that, as a result, she was a qualifying medical marijuana patient under Massachusetts law. She added that she did not use marijuana daily and would not consume it before work or at work. Typically, Barbuto uses marijuana in small quantities at her home, usually in the evening, two or three times per week. As a result of her Crohn’s disease, and her irritable bowel syndrome, she has “little or no appetite,” and finds it difficult to maintain a healthy weight. After she started to use marijuana for medicinal purposes, she gained fifteen pounds and has been able to maintain a healthy weight. The supervisor told Barbuto that her medicinal use of marijuana “should not be a problem,” but that he would confirm this with others at ASM. He later telephoned her and confirmed that her lawful medical use of marijuana would not be an issue with the company. On September 5, 2014, Barbuto submitted a urine sample for the mandatory drug test. On September 11, she went to an ASM training program, where she was given a uniform and assigned a supermarket location where she would promote the products of ASM’s customers. She completed her first day of work the next day. She did not use marijuana at the workplace and did not report to work in an intoxicated state. That evening, the defendant Joanna Meredith Villaruz, ASM’s human resources representative, informed Barbuto that she was terminated for testing positive for marijuana. Villaruz told Barbuto that ASM did not care if Barbuto used marijuana to treat her medical condition because “we follow [Fjederal law, not [Sjtate law.” Barbuto filed a verified charge of discrimination against ASM and Villaruz with the Massachusetts Commission Against Discrimination (MCAD), which she later withdrew in order to file a complaint in the Superior Court. The complaint included six claims: (1) handicap discrimination, in violation of G. L. c. 15 IB, §4 (16); (2) interference with her right to be protected from handicap discrimination, in violation of G. L. c. 15 IB, § 4 (4A); (3) aiding and abetting ASM in committing handicap discrimination, in violation of G. L. c. 15IB, §4 (5); (4) invasion of privacy, in violation of G. L. c. 214, § IB; (5) denial of the “right or privilege” to use marijuana lawfully as a registered patient to treat a debilitating medical condition, in violation of the medical marijuana act; and (6) violation of public policy by terminating the plaintiff for lawfully using marijuana for medicinal purposes. The second and third claims were brought against Villaruz alone; the rest were brought against both ASM and Villaruz. After unsuccessfully attempting to remove the case to United States District Court, the defendants filed a motion to dismiss the complaint in the Superior Court. The judge allowed the motion as to all counts except the invasion of privacy claim. At the request of the plaintiff, the judge entered a separate and final judgment on the dismissed claims, and stayed the invasion of the privacy claim pending appeal. The plaintiff filed a notice of appeal regarding the dismissed claims, and we allowed the plaintiff’s application for direct appellate review. Discussion. 1. Massachusetts medical marijuana act. Under the medical marijuana act, a “qualifying patient” is defined as “a person who has been diagnosed by a licensed physician as having a debilitating medical condition”; Crohn’s disease is expressly included within the definition of a “debilitating medical condition.” St. 2012, c. 369, §§ 2 (K), (C). The act protects a qualifying patient from “arrest or prosecution, or civil penalty, for the medical use of marijuana” provided the patient “(a) [pjossesses no more marijuana than is necessary for the patient’s personal, medical use, not exceeding the amount necessary for a sixty-day supply; and (b) [pjresents his or her registration card to any law enforcement official who questions the patient. . . regarding use of marijuana.” St. 2012, c. 369, § 4. The act also provides, “Any person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions.” Id. Like Massachusetts, nearly ninety per cent of States, as well as Puerto Rico and the District of Columbia, allow the limited possession of marijuana for medical treatment. See Congressional Research Service, The Marijuana Policy Gap and the Path Forward 7 (Mar. 10, 2017). See also National Conference of State Legislatures, State Medical Marijuana Laws (2017), http:// www.ncsl.org/research/health/state-medical-marijuana-laws.aspx [https://perma.cc/9VYY-YMP8] (reporting that twenty-nine States, the District of Columbia, Puerto Rico, and Guam allow for “comprehensive public medical marijuana and cannabis programs,” while seventeen other States allow use of “ ‘low THC, high can-nabidiol. .. products’ for medical reasons in limited situations or as a legal defense”). Yet under Federal law, marijuana continues to be a Schedule I controlled substance under the Controlled Substances Act, 21 U.S.C. § 812(b)(1), (c) (2012), whose possession is a crime, regardless of whether it is prescribed by a physician for medical use. See Gonzales v. Raich, 545 U.S. 1, 27 (2005) (“The [Controlled Substances Act] designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses” [emphasis in original]). Consequently, a qualifying patient in Massachusetts who has been lawfully prescribed marijuana remains potentially subject to Federal criminal prosecution for possessing the marijuana prescribed. It is against this unusual backdrop that we review the judge’s dismissal of every claim in the complaint except for the privacy claim. 2. Handicap discrimination. Under G. L. c. 15 IB, § 4 (16), it is an “unlawful practice . . . [f]or any employer ... to dismiss from employment or refuse to hire . . . , because of [her] handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business.” “In interpreting the meaning of these provisions, we give ‘substantial deference’ to the guidelines interpreting G. L. c. 151B, promulgated by the MCAD, although we recognize that the guidelines do not carry the force of law.” Gannon v. Boston, 476 Mass. 786, 792 (2017), citing Dahill v. Police Dep’t of Boston, 434 Mass. 233, 239 (2001). ‘“We remain mindful that the Legislature instructed that G. L. c. 151B ‘shall be construed liberally for the accomplishment of its purposes.’ ” Gannon, supra at 793, quoting G. L. c. 151B, § 9. The plaintiff alleges that she is a ‘“handicapped person” because she suffers from Crohn’s disease and that she is a ‘“qualified handicapped person” because she is capable of performing the essential functions of her job with a reasonable accommodation to her handicap; that is, with a waiver of ASM’s policy barring anyone from employment who tests positive for marijuana so that she may continue to use medical marijuana as prescribed by her physician. She adequately states a claim for handicap discrimination in violation of § 4 (16) if the allegations in her complaint, accepted as true, suffice to make a facial showing that she is a ‘“qualified handicapped person” who was terminated because of her handicap. See Massachusetts Commission Against Discrimination, Guidelines: Employment Discrimination on the Basis of Handicap, Chapter 15 IB § IX.A.3 (1998) (MCAD Guidelines). Where Crohn’s disease is characterized as a ‘“debilitating medical condition” under the medical marijuana act, see St. 2012, c. 369, § 2 (C), and where the complaint alleges that, as a result of this condition, combined with irritable bowel syndrome, the plaintiff has ‘“little or no appetite” and has difficulty maintaining a healthy weight, we conclude that she has adequately alleged that she has a physical impairment that substantially limits one or more major life activities and therefore is a “handicapped person” as defined in § 1 (19). Where a plaintiff is handicapped and where she suffered an adverse employment action even though she was capable of performing the essential functions of her position with some form of accommodation, the plaintiff adequately alleges a claim of handicap discrimination if the accommodation that she alleges is necessary is facially reasonable. See Godfrey v. Globe Newspaper Co., 457 Mass. 113, 120 (2010). Because a reasonable accommodation claim may arise in a wide variety of contexts, courts are reluctant to set “hard and fast rules” as to when an accommodation is facially reasonable. See Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 n.5 (1st Cir. 2001). Generally speaking, however, a plaintiff must at least show that the accommodation is “feasible for the employer under the circumstances.” Id. at 259. The defendants argue that Barbuto has failed to state a claim of handicap discrimination for two reasons. First, they contend that she has not adequately alleged that she is a “qualified handicapped person” because the only accommodation she sought — her continued use of medical marijuana — is a Federal crime, and therefore is facially unreasonable. See Garcia v. Tractor Supply Co., 154 F. Supp. 3d 1225, 1229 (D.N.M. 2016) (“medical marijuana is not an accommodation that must be provided for by the employer”); Ross v. Raging Wire Telecomm., Inc., 42 Cal. 4th 920, 926 (2008) (California’s statute prohibiting handicap discrimination “does not require employees to accommodate the use of illegal drugs”). Second, they contend that, even if she were a “qualified handicapped person,” she was terminated because she failed a drug test that all employees are required to pass, not because of her handicap. As to the defendants’ first argument, where an employee is handicapped because she suffers from a debilitating medical condition that can be alleviated or managed with medication, one generally would expect an employer not to interfere with the employee taking such medication, or to terminate her because she took it. If the employer, however, had a drug policy prohibiting the use of such medication, even where lawfully prescribed by a physician, the employer would have a duty to engage in an interactive process with the employee to determine whether there were equally effective medical alternatives to the prescribed medication whose use would not be in violation of its policy. See Godfrey, 457 Mass. at 120 (“If the accommodation proposed by the employee appears unduly onerous, the employer has an obligation to work with the employee to determine whether another accommodation is possible”). See also Massachusetts Bay Transp. Auth. v. Massachusetts Comm’n Against Discrimination, 450 Mass. 327, 342 n.17 (2008) (when handicapped employee requests accommodation, “employer is obligated to participate in the interactive process of determining one”); MCAD Guidelines, supra at § VII.C (once handicapped employee notifies employer of need for accommodation to perform essential functions of job, “the employer should initiate an informal interactive process” with employee to “identify the precise limitation resulting from the handicap and potential reasonable accommodations that could overcome those limitations”). Where no equally effective alternative exists, the employer bears the burden of proving that the employee’s use of the medication would cause an undue hardship to the employer’s business in order to justify the employer’s refusal to make an exception to the drug policy reasonably to accommodate the medical needs of the handicapped employee. See Godfrey, 457 Mass. at 120, quoting Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 386 n.3 (1993) (“Once an employee ‘make[s] at least a facial showing that reasonable accommodation is possible,’ the burden of proof [of both production and persuasion] shifts to the employer to establish that a suggested accommodation would impose an undue hardship”). Because the burden of proving undue hardship rests with the employer, where an employee brings a handicap discrimination claim following her dismissal for the use of her prescribed medication, her complaint will state a claim for relief that will survive a motion to dismiss where it adequately alleges that she is a “qualified handicapped person” because she could have competently performed her job with the medication, and that allowing her to use the medication was at least facially a reasonable accommodation. Here, the defendants contend that, because the prescribed medication is marijuana, which is illegal to possess under Federal law, an accommodation that would permit the plaintiff to continue to be treated with medical marijuana is per se unreasonable. They also contend that, because such an accommodation is facially unreasonable, they owed the plaintiff no obligation to participate in the interactive process to identify a reasonable accommodation before they terminated her employment. We are not persuaded by either argument. Under Massachusetts law, as a result of the act, the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication. Where, in the opinion of the employee’s physician, medical marijuana is the most effective medication for the employee’s debilitating medical condition, and where any alternative medication whose use would be permitted by the employer’s drug policy would be less effective, an exception to an employer’s drug policy to permit its use is a facially reasonable accommodation. A qualified handicapped employee has a right under G. L. c. 15 IB, § 4 (16), not to be fired because of her handicap, and that right includes the right to require an employer to make a reasonable accommodation for her handicap to enable her to perform the essential functions of her job. Our conclusion finds support in the marijuana act itself, which declares that patients shall not be denied “any right or privilege” on the basis of their medical marijuana use. St. 2012, c. 369, § 4. A handicapped employee in Massachusetts has a statutory “right or privilege” to reasonable accommodation under G. L. c. 15 IB, § 4. If an employer’s tolerance of an employee’s use of medical marijuana were a facially unreasonable accommodation, the employee effectively would be denied this “right or privilege” solely because of the pa

Robert George & others vs. National Water Main Cleaning Company & others. Suffolk. February 14, 2017. June 26, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Supreme Judicial Court, Certification of questions of law. Massachusetts Wage Act. Labor, Wages, Failure to pay wages. Damages. Damages, Interest. Interest. Judgment, Interest. Practice, Civil, Interest, Judgment, Damages. This court concluded that under Massachusetts law, statutory prejudgment interest pursuant to G. L. c. 231, § 6H, is to be added by the clerk of court to the amount of lost wages and other benefits awarded as damages on judgments pursuant to the Wage Act, G. L. c. 149, § 150, but is not to be added to the additional amount of the award arising from the trebling of those damages as liquidated damages. [372-381] Certification of a question of law to the Supreme Judicial Court by the United States District Court for the District of Massachusetts. Adam J. Shafran (Jonathon D. Friedmann also present) for the plaintiffs. Richard L. Alfred (Dawn Reddy Solowey & Anne S. Bider also present) for the defendants. John Pagliaro & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief. Annette Gonthier Kiely, Kathy Jo Cook, Thomas R. Murphy, & Timothy J. Wilton, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief. Michael Curvin, Mark Bassett, Kevin Colvin, Justin Kordas, Caitos Villarreal, Paul Dockett, Jon Eldridge, Chris Myers, Zef Zeka, Paul LeDoux, Erik Paiva, Jeffrey David, and Chris Mirisola, individually and on behalf of all others similarly situated. Carylon Corporation, Dennis Sullivan, Antonino LaFrancesca, and Carl Cummings. Gants, C.J. Several employees of National Water Main Cleaning Company filed a class action suit against the company and its parent company, Carylon Corporation, in the Superior Court, alleging, among other claims, nonpayment of wages in violation of the Massachusetts Wage Act, G. L. c. 149, §§ 148, 150 (Wage Act). After the case was removed to the United States District Court for the District of Massachusetts, the judge granted final approval of a class settlement agreement that resolved all outstanding issues except one question of law. To resolve that question, the judge certified to this court the following question pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981): “Is statutory interest pursuant to [G. L. c. 231, § 6B or 6C,] available under Massachusetts law when liquidated (treble) damages are awarded pursuant to [G. L. c. 149, § 150]?” In answer to the question, we declare that, under Massachusetts law, statutory prejudgment interest pursuant to G. L. c. 231, § 6H, shall be added by the clerk of court to the amount of lost wages and other benefits awarded as damages pursuant to G. L. c. 149, § 150, but shall not be added to the additional amount of the award arising from the trebling of those damages as liquidated damages. Interpretation of the certified question. Before we answer the certified question, which the judge issued at the joint request of the parties, we must first ascertain its meaning. The question is an inquiry into the availability of statutory interest pursuant to two statutes: G. L. c. 231, § 6B, which directs the clerk of court to add interest at the rate of twelve per cent per year to awards of judgment “for personal injuries to the plaintiff or for . . . damage to property”; and G. L. c. 231, § 6C, which directs the clerk to add interest at the same twelve per cent rate to awards of judgment “[i]n all actions based on contractual obligations.” The parties appear to treat the certified question essentially as two questions: first, whether Wage Act claims fall within the scope of either § 6B or § 6C, and second, if they do, whether prejudgment interest should be added to the award of damages for lost wages and other benefits where § 150, as amended in 2008, provides for the trebling of those damages and characterizes such an award as “liquidated damages.” We decline to answer the first of these questions because, even if prejudgment interest could not be added to Wage Act awards under § 6B or § 6C, it plainly could be added under G. L. c. 231, § 6H, which declares that interest at the rate of twelve per cent per year shall be added to the award of damages ‘“[i]n any action in which damages are awarded, but in which interest on said damages is not otherwise provided by law.” The question we shall answer, which we consider to be the true gist of the certified question, is whether the Legislature, when it amended § 150 in 2008 to require the award of treble damages on Wage Act judgments and characterized the award as ‘“liquidated damages,” intended that prejudgment interest not be added to any part of this award because such interest was included within the scope of ‘“liquidated damages.” See Tyler v. Michaels Stores, Inc., 464 Mass. 492, 499 n.12 (2013) (declining to limit answer to narrow confines of certified question where broader discussion was necessary to articulate law regarding issue presented). Discussion. The Wage Act was enacted ‘“to protect wage earners from the long-term detention of wages by unscrupulous employers.” Melia v. Zenhire, Inc., 462 Mass. 164, 170 (2012), quoting Cumpata v. Blue Cross Blue Shield of Mass., Inc., 113 F. Supp. 2d 164, 167 (D. Mass. 2000). Employers violate the Wage Act when they fail to pay ‘“each . . . employee the wages earned” and when they fail to do so within the time period set by statute. See G. L. c. 149, § 148. Before the 2008 amendment, G. L. c. 149, § 150, provided that an aggrieved employee may initiate ‘“a civil action for . . . any damages incurred, including treble damages for any loss of wages and other benefits” and, if he or she prevails, ‘“shall be entitled to an award of the costs of the litigation and reasonable attorney fees.” St. 2005, c. 99, § 2. In Wiedmann v. The Bradford Group, Inc., 444 Mass. 698, 709 (2005), we noted that the text of this statute ‘“states only that a plaintiff ‘may’ institute a suit for damages that includes a request for treble damages,” and concluded that “there is nothing in the plain language of the statute that requires an award of treble damages.” We declined to require a judge to award treble damages to a prevailing plaintiff where the plain language of § 150 did not require it, and declared that the award of treble damages in Wage Act cases was a decision left to the discretion of the judge. Id. at 710. This conclusion was similar to the conclusion we reached in Goodrow v. Lane Bryant, Inc., 432 Mass. 165, 178-179 (2000), where we rejected the argument that the award of treble damages was mandatory once a plaintiff requested such an award for an employer’s failure to pay required overtime compensation, in violation of G. L. c. 151, § IB. Wiedmann, supra. We noted that we had declared in Goodrow that “treble damages are punitive in nature, allowed only where authorized by statute, and appropriate where conduct is ‘outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.’ ” Wiedmann, supra, quoting Goodrow, supra at 178. Three years after we decided Wiedmann, the Legislature “effected a critical change in the language of the statute, removing the provision that treble damages ‘may’ be awarded, and replacing it with the directive that treble damages ‘shall be awarded.’ ” Rosnov v. Molloy, 460 Mass. 474, 479 (2011). Under G. L. c. 149, § 150, as amended through St. 2008, c. 80, § 5, where an aggrieved employee prevails in a civil action seeking damages under the Wage Act, the employee “shall be awarded treble damages, as liquidated damages, for any lost wages and other benefits and shall also be awarded the costs of the litigation and reasonable attorneys’ fees.” By its plain language, the 2008 amendment to § 150 mandates the award of treble damages for lost wages and benefits once an aggrieved employee prevails on a Wage Act claim; the plaintiff no longer need show that the defendant’s conduct was “outrageous” to obtain such an award. The 2008 amendment did more than mandate the award of treble damages to a prevailing plaintiff in a Wage Act case; it characterized the treble damages “as liquidated damages.” The crux of this appeal is to ascertain what the Legislature intended by this characterization. The defendants contend that the inclusion of this phrase reflects the intent of the Legislature that, apart from the award of reasonable attorney’s fees and the costs of lihgation, the judgment in favor of a prevailing plaintiff shall be limited to three times the amount of lost wages and benefits; it shall not include any prejudgment interest, whether under § 6B, 6C, or 6H, because prejudgment interest is included within the award of liquidated damages. The plaintiff contends that the inclusion of this phrase reflects the intent of the Legislature that treble damages be treated as compensatory in nature, rather than punitive, and does not reflect an intent to deprive employees of prejudgment interest they would otherwise be due as a matter of statute for their lost wages and benefits. “Liquidated damages” is a term derived from contract law to identify the amount of damages that the parties agree must be paid in the event of a breach. See Cochrane v. Forbes, 267 Mass. 417, 420 (1929) (“Liquidated damages ... mean damages, agreed upon as to amount by the parties, or fixed by operation of law, or under the correct applicable principles of law made certain in amount by the terms of the contract, or susceptible of being made certain in amount by mathematical calculations ...”). See also 24 R.A. Lord, Williston on Contracts § 65:1 (4th ed. 2002). “A liquidated damages provision will usually be enforced, provided two criteria are satisfied: first, that at the time of contracting the actual damages flowing from a breach were difficult to ascertain; and second, that the sum agreed on as liquidated damages represents a ‘reasonable forecast of damages expected to occur in the event of a breach.’ ” NPS, LLC v. Minihane, 451 Mass. 417, 420 (2008), quoting Cummings Props., LLC v. National Communications Corp., 449 Mass. 490, 494 (2007). “Where damages are easily ascertainable, and the amount provided for is grossly disproportionate to actual damages or unconscionably excessive, the court will award the aggrieved party no more than its actual damages.” NPS, LLC, supra. The term is used in the damages provision of the Federal Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b), which provides, “Any employer who violates the provisions of [§ 206 or 207] of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.” The United States Supreme Court has declared that liquidated damages under the FLSA “are compensation, not a penalty or punishment by the [g]overnment.” Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 583 (1942). “The retention of a workman’s pay may well result in damages too obscure and difficult of proof for estimate other than by liquidated damages.” Id. at 583-584. Liquidated damages under the FLSA “constitute[ ] a Congressional recognition that failure to pay the statutory minimum on time may be so detrimental to maintenance of the minimum standard of living ‘necessary for health, efficiency and general well-being of workers’ and to the free flow of commerce, that double payment must be made in the event of delay in order to insure restoration of the worker to that minimum standard of well-being” (footnote omitted). Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707 (1945). Although the legislative history is silent regarding the Legislature’s purpose in characterizing treble damages as “liquidated damages” in the 2008 amendment to the Wage Act, we infer that the Legislature knew that • the FLSA had characterized the “additional equal amount” of unpaid minimum wages and unpaid overtime compensation as “liquidated damages”; • the United States Supreme Court had regarded liquidated damages as compensatory in nature rather than punitive; and • the characterization of treble damages as “liquidated damages” could be used to defend an award of treble damages from the constitutional challenge that such an award was punitive in nature and therefore required a finding that the employer’s conduct had been “outrageous.” See Matamoros v. Starbucks Corp., 699 F.3d 129, 140 (1st Cir. 2012) (defendant employer’s argument that treble damages under Wage Act violate due process in absence of finding of employer “reprehensibility” was “misplaced” because, “[b]y definition, . . . liquidated damages are not punitive damages”). The defendants contend that we should make one further inference: that, by characterizing treble damages as “liquidated damages” under the Wage Act, the Legislature intended to adopt Federal law and preclude a plaintiff from receiving any prejudgment interest on the award, including the award of lost wages and benefits. We conclude that this is one inference too far. We recognize that the Supreme Court has declared that Congress, by providing an award of liquidated damages under the FLSA, “meant to preclude recovery of interest on minimum wages and liquidated damages.” Brooklyn Sav. Bank, 324 U.S. at 715-716. The Court described “liquidated damages” as “compensation for delay in payment of sums due under the [FLSA].” Id. at 715. Consequently, according to the Court: “Since Congress has seen fit to fix the sums recoverable for delay, it is inconsistent with Congressional intent to grant recovery of interest on such sums in view of the fact that interest is customarily allowed as compensation for delay in payment. To allow an employee to recover the basic statutory wage and liquidated damages, with interest, would have the effect of giving an employee double compensation for damages arising from delay in the payment of the basic minimum wages. . . . Allowance of interest on minimum wages and liquidated damages recoverable under § 16 (b) tends to produce the undesirable result of allowing interest on interest.” (Citation omitted.) Id. We are not persuaded that the Legislature shared the Congressional intent in this regard. When the FLSA was enacted, there was no Federal statute generally mandating the payment of prejudgment interest. See Milwaukee v. Cement Div., Nat. Gypsum Co., 515 U.S. 189, 194 (1995). The payment of prejudgment interest in Federal court, in the absence of a statute regarding prejudgment interest, “is governed by traditional judge-made principles.” Id, In contrast, as noted earlier, the payment of prejudgment interest in a Massachusetts court is governed by statute, either G. L. c. 231, § 6B, 6C, or 6H. The enactment of § 6H, St. 1983, c. 652, § 1, mandating the payment of prejudgment interest where ‘“not otherwise provided by law,” reflects the Legislature’s intent that prejudgment interest always be added to an award of compensatory damages. Where § 6H provides for the award of prejudgment interest whenever compensatory damages are awarded, an interpretation of § 150, as amended, that would preclude the payment of prejudgment interest on the award of lost wages and benefits under the Wage Act would be an implied repeal of § 6H with respect to Wage Act awards. Under our ‘“long standing rule of statutory interpretation,” the implied repeal of a statute by a subsequent statute has “never been favored by our law.” Commonwealth v. Hayes, 372 Mass. 505, 511 (1977), quoting Commonwealth v. Bloomberg, 302 Mass. 349, 352 (1939). Where two statutes appear to be in conflict, we do not mechanically determine “that the more ‘recent’ or more ‘specific’ statute .. . trumps the other.” Commonwealth v. Harris, 443 Mass. 714, 725 (2005). Instead, we “endeavor to harmonize the two statutes so that the policies underlying both may be honored.” Id, “[A] statute is not to be deemed to repeal or supersede a prior statute in whole or in part in the absence of express words to that effect or of clear implication.” Id., quoting Hayes, supra at 512. Repeal is not clearly implied “[ujnless the prior statute is so repugnant to and inconsistent with the later enactment that both cannot stand.” Hayes, supra at 511. Here, amended § 150 is in conflict with § 6H only if we conclude that the Legislature intended the trebled “liquidated damages” to incorporate all prejudgment interest. But, because we disfavor implied repeal, we may reach that conclusion only if § 150 expressly states that “liquidated damages” includes all prejudgment interest or otherwise negates the entitlement in § 6H to prejudgment interest (which it does not), or if the addition of prejudgment interest to an award of lost wages and benefits is clearly inconsistent with the characterization of treble damages as “liquidated damages” (which it is not). Before § 150 was amended in 2008, an aggrieved employee who prevailed on a Wage Act claim was entitled to prejudgment interest on an award of lost wages and benefits. See, e.g., DeSantis v. Commonwealth Energy Sys., 68 Mass. App. Ct. 759, 768, 771 (2007) (upholding award of prejudgment interest on damages for lost wages and benefits under Wage Act). Where the employer’s conduct was so outrageous as to justify punitive damages, prejudgment interest would not be added to the trebled punitive damages award, but the award of punitive damages did not mean the deprivation of prejudgment interest on the award of lost wages and benefits. Cf. McEvoy Travel Bur., Inc. v. Norton Co., 408 Mass. 704, 717 & n.9 (1990) (prejudgment interest added to actual damages in G. L. c. 93A judgment, but not to multiple punitive damages). There is nothing in the legislative history of the 2008 amendment of § 150 to suggest that the Legislature intended to deprive an employee of prejudgment interest on lost wages and benefits when it characterized what had been punitive damages as liquidated damages. To do so would mean that an employee who was deprived of wages and benefits because of the outrageous conduct of his or her employer would receive the same treble damages under the amended § 150 as he or she would have obtained before the amendment, albeit as liquidated damages rather than punitive damages, but would obtain a lesser judgment because of the preclusion of prejudgment interest. Section 6H may be read in harmony with the amended § 150 simply by recognizing that the Legislature intended no change in the payment of prejudgment interest. Nor is there anything in the legislative history to suggest that the Legislature intended that the amended § 150 mirror the FLSA with respect to “liquidated damages.” We can infer that the Legislature did not intend the Wage Act fully to replicate the FLSA because it declined to adopt a good faith exception to the Wage Act’s mandatory damages requirement. As a result of the Portal-to-Portal Act, 29 U.S.C. § 260 (1947), liquidated damages under the FLSA must be remitted “if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the [Act].” See Reich v. Southern New England Telecomm. Corp., 121 F.3d 58, 70-71 (2d Cir. 1997). By contrast, following the passage of the 2008 amendment to the Wage Act, the Legislature declined to accept the Governor’s proposed amendments — similar to those in the Portal-to-Portal Act — that would have allowed an exception to mandatory treble damages for employers who violated the Wage Act in good faith. See Rosnov, 460 Mass. at 482 n.9. The amended § 150 became law without the Governor’s signature. Id. Moreover, prejudgment interest and § 150 damages are different in kind and accomplish distinctly

Timothy P. Chambers & another vs. RDI Logistics, Inc., & another; Dee & Lee, LLC, & another, third-party defendants. Bristol. October 5, 2016. December 16, 2016. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Independent Contractor Act. Federal Preemption. Statute. Federal preemption. Severability. Practice. Civil. Summary judgment. Standing. Employment. Retaliation. Protective Order. In a civil action brought by plaintiffs who contracted with the defendants through small corporations that the plaintiffs had formed for the purpose of contracting to perform services in Massachusetts as furniture delivery drivers, the judge erred in granting summary judgment in favor of the defendants, where, although a portion of G. L. c. 149, § 148B, the independent contractor statute, is preempted by the Federal Aviation Administration Authorization Act of 1994, 49 U.S.C. § 14501(c), the remainder was sever-able and remained applicable to the plaintiffs’ claim of misclassification, regarding which material facts remained in dispute [99-108]; and where the plaintiffs had alleged enough facts to establish a genuine issue of material fact whether they had standing to assert claims for misclassification under the independent contractor statute [108-109]; moreover, the judge erred in dismissing, without explanation, one plaintiff’s claim of retaliation [109-110], In a civil action brought by plaintiffs who contracted with the defendants through small corporations that the plaintiffs had formed for the purpose of contracting to perform services in Massachusetts as furniture delivery drivers, the judge did not abuse his discretion in denying the plaintiffs’ emergency motion for a protective order to enjoin one defendant from contacting its workers, where the judge’s determination that the communications were not coercive or misleading was not unreasonable. [110-112] Civil action commenced in the Superior Court Department on September 20, 2013. An emergency motion for a protective order was considered by Richard T Moses, L; a motion for reconsideration was considered by him; and the case was heard by him on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Harold L. Lichten (Peter M. Delano also present) for the plaintiffs. Michael T. Grant (Andrew J. Fay also present) for the defendants. Individually and on behalf of all others similarly situated. Leroy Johnson, individually and on behalf of all others similarly situated. Richard J. Deslongchamps, Jr. Three T & C Transport, Inc. Lenk, J. We are called upon in this case chiefly to consider whether G. L. c. 149, § 148B, the independent contractor statute, is preempted by the Federal Aviation Administration Authorization Act of 1994 (FA A A A), 49 U.S.C. § 14501(c). The plaintiffs, who contracted with the defendants through small corporations that the plaintiffs apparently formed for this purpose, performed services in Massachusetts as furniture delivery drivers. They brought this putative class action against the defendants under the independent contractor statute, asserting that they had been misclassified as independent contractors. Following the addition of other claims and counterclaims, summary judgment entered for the defendants dismissing the plaintiffs’ claims on the ground that they were preempted by the Federal statute. We conclude that, while a portion of the independent contractor statute is preempted by the FAAAA, the remainder is severable and remains applicable to the plaintiffs’ misclassification claim. Nor is summary judgment dismissing that claim warranted on the separately asserted basis that the plaintiffs lack standing as individuals to assert claims for misclassification under the statute. Material issues of disputed fact preclude the entry of summary judgment on either basis. We conclude similarly that the dismissal, without explanation, of the claim of retaliation that Timothy Chambers individually asserts under G. L. c. 149, § 148A, was improper. Finally, we review the denial of the plaintiffs’ request for a protective order, brought in the wake of the defendants’ communications with putative class members in which they were offered payments in exchange for signed releases. While discerning no abuse of discretion requiring reversal in these circumstances, we acknowledge the legitimate concerns raised by such communications and the authority of a judge to enter appropriate protective orders when necessary. 1. Background. Since this case concerns a grant of summary judgment, we “summarize the relevant facts in the light most favorable to the plaintiff[s].” Somers v. Converged Access, Inc., 454 Mass. 582, 584 (2009). RDI Logistics, Inc. (RDI), is a furniture delivery company headquartered in South Easton. Richard Deslongchamps, Jr., is the founder and president of RDI. The company provides “last mile” delivery services for large retail furniture companies. The plaintiffs delivered furniture for RDI for several years on a full-time basis, working approximately sixty hours per week over five or six days. Since RDI only does business with independent business entities, the plaintiffs incorporated prior to entering into contracts with RDI. The contracts contained both nonsolicitation and noncompete clauses, which effectively prevented the plaintiffs from performing any delivery work for RDTs competitors during their tenure with the company and for three years thereafter. RDTs managers informed the plaintiffs that their contracts would be terminated if they worked for any company other than RDI. The company also required the plaintiffs to wear uniforms and to display signs on their trucks bearing either RDTs logo or the logos of RDTs customers. RDI deducted from the plaintiffs’ pay the costs of uniforms, truck lease payments, and damage allegedly done to customers’ property in the course of their deliveries. RDI also regulated how the plaintiffs loaded the furniture on their trucks, which customers they delivered to, and the specific windows of time in which they were to deliver their goods to customers. Finally, RDI required that the plaintiffs follow prescribed routes to reach their customers and use global positioning system devices to ensure that the plaintiffs did not deviate from their assigned routes. After approximately four years of service, RDI terminated its contract with Johnson’s company in December, 2011, under disputed circumstances. During the summer of 2013, Chambers informed his fellow drivers at RDI that he suspected that RDI was misclassifying them as independent contractors rather than as employees. In August, 2013, RDI informed Chambers that his contract was subject to a sixty-day review period. On the evening of September 18, 2013, Deslongchamps confronted Chambers and accused him of attempting to file a lawsuit under the independent contractor statute. After a brief argument, Deslong-champs fired Chambers. Two days later, the plaintiffs filed a class action complaint against RDI and Deslongchamps, individually, alleging misclass-ification. In October, 2013, they filed an amended complaint, adding a claim for unjust enrichment stemming from the purported misclassification, as well as an individual claim on behalf of Chambers alleging retaliation under G. L. c. 149, § 148A. The defendants asserted two counterclaims for breach of contract against Johnson, maintaining that he had violated a release of claims against RDI that he signed upon his termination. They also filed a third-party complaint against the plaintiffs’ respective corporations, asserting that the contracts between those corporations and RDI indemnified RDI against any damages resulting from the plaintiffs’ claims. In July of 2014, the parties engaged in an unsuccessful mediation effort. Three montos later, as discovery was underway, RDI sent a series of letters on an ex parte basis to certain current and former RDI contractors. Each letter contained a check for $1,000 that would, if endorsed, purportedly release all claims against RDI. The two-page letters, in essence, stated that two individuals had filed a class action complaint against RDI in which they claimed that they were misclassified as independent contractors. The letters, which contained toe Superior Court case caption, noted that although “RDI believes firmly that it has not acted improperly with regard” to its classification of its workers, it would offer “a one-time payment in exchange for a release” of any claims relating, inter alia, to the classification of those workers. On learning of these letters, the plaintiffs sought an emergency protective order barring RDI from engaging in further communications with “putative class members.” They asked the judge to strike “any alleged settlements obtained as the result of toe letters and checks” that had been mailed. The motion was denied. A few months later, toe plaintiffs filed a motion for reconsideration of their emergency motion, claiming that an RDI driver had informed the plaintiffs’ counsel that he and his fellow drivers feared they would lose their contracts with RDI if they did not endorse the checks. The judge denied that motion. The plaintiffs sought interlocutory review before a single justice of toe Appeals Court, which also was denied. Two weeks later, the plaintiffs moved for partial summary judgment on their misclassification claim. In response, the defendants filed a cross motion for summary judgment on all of the plaintiffs’ claims, along with their claims against Johnson and the plaintiffs’ companies. The judge denied the plaintiffs’ motion and allowed the defendants’ motion on the ground that the FAAAA preempted the independent contractor statute in its entirety. The plaintiffs’ complaint was dismissed, along with the defendant’s claims against Johnson and the plaintiffs’ companies. We allowed the plaintiffs’ application for direct appellate review. 2. Discussion, a. Summary judgment. The defendants claim that they are entitled to judgment as a matter of law on all of the plaintiffs’ claims. They contend that the plaintiffs’ misclassification claim fails for two reasons. First, they suggest that the statute is preempted by the FAAAA. Second, they argue that the plaintiffs do not have standing under the independent contractor statute because their contracts with RDI were through corporate entities. The defendants also suggest that Chambers’s retaliation claim fails because he does not have standing unless he proves that he is an employee. i. Standard of review. “We review a grant of summary judgment de novo to determine ‘whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.’ ” DeWolfe v. Hingham Centre, Ltd., 464 Mass. 795, 799 (2013), quoting Juliano v. Simpson, 461 Mass. 527, 529-530 (2012). Because we review this matter de novo, “no deference is accorded the decision of the judge in the trial court.” Federal Nat’l Mtge. Ass’n v. Hendricks, 463 Mass. 635, 637 (2012). The defendants, as the moving parties, bear the “burden of establishing that there is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law.” DeWolfe, supra. ii. Misclassification claim. A. Independent contractor statute. The independent contractor statute “establishes a standard to determine whether an individual performing services for another shall be deemed an employee or an independent contractor for purposes of our wage statutes.” Somers v. Converged Access, Inc., 454 Mass. 582, 589 (2009). “Under this standard, ‘ “an individual performing any service” is presumed to be an employee’ ” (citations omitted). Sebago v. Boston Cab Dispatch, Inc., 471 Mass. 321, 327 (2015). “The purpose of the independent contractor statute is ‘to protect workers by classifying them as employees, and thereby grant them the benefits and rights of employment, where the circumstances indicate that they are, in fact, employees’ ” (citation omitted). Depianti v. Jan-Pro Franchising Int’l, Inc., 465 Mass. 607, 620 (2013). To establish that a presumptive employee is actually an independent contractor, an employer must prove that “(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and “(2) the service is performed outside the usual course of the business of the employer; and “(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.” G. L. c. 149, § 148B. To “rebut the presumption of employment,” an employer must satisfy all three of these prongs. Depianti, 465 Mass. at 621. B. The FAAAA. In enacting the FAAAA in 1994, Congress sought to deregulate the trucking industry. See Dan’s City Used Cars, Inc. v. Pelkey, 133 S. Ct. 1769, 1775 (2013). Congress acted based on a finding “that [SJtate governance of intrastate transportation of property had become ‘unreasonably burdensome]’ to ‘free trade, interstate commerce, and American consumers.’ ” Id., quoting Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 440 (2002). Toward that end, Congress included a preemption clause in the statute that expressly preempts any State “law, regulahon, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1) (2012). “The critical question in any preemption analysis is always whether Congress intended that [F]ederal [law] supersede [S]tate law” (citation omitted). Bay Colony R.R. v. Yarmouth, 470 Mass. 515, 518 (2015). While Congress’s intent to preempt State law under the FAAAA is explicit, “that ‘does not immediately end the inquiry because the question of the substance and scope of Congresses] displacement of [S]tate law still remains.’” Id., quoting Altria Group, Inc. v. Good, 555 U.S. 70, 76 (2008). In order to determine this scope, we “focus first on the statutory language, ‘which necessarily contains the best evidence of Congresses] pre-emptive intent’ ” (citahon omitted). Dan’s City Used Cars, Inc., 133 S. Ct. at 1778. The breadth of the FAAAA’s preemption clause is “purposefully expansive.” Massachusetts Delivery Ass’n v. Coakley, 769 F.3d 11, 18 (1st Cir. 2014). Any State laws “ ‘having a connection with, or reference to,’ carrier ‘ “rates, routes, or services,” are pre-empted’ ” (citation omitted). Rowe v. New Hampshire Motor Transp. Ass’n, 552 U.S. 364, 370 (2008). Congress’s overarching goal in establishing such expansive preemption was twofold. First, it aimed to “ensure transportation rates, routes, and services that reflect[ed] ‘maximum reliance on competitive market forces,’ thereby stimulating ‘efficiency, innovation, and low prices,’ as well as ‘variety’ and ‘quality’ ” (citation omitted). Id. at 371. Second, Congress wanted to sweep aside “a patchwork of [S]tate service-determining laws, rules, and regulations” that would undercut this goal. Id. at 373. The United States Supreme Court has interpreted the FAAAA’s preemptive effect broadly, concluding that preemption occurs “at least where [S]tate laws have a ‘significant impact’ related to Congresses] deregulatory and pre-emption-related objectives” (citation omitted). Id. at 371. Despite its expansive ambit, however, the FAAAA’s preemption is not unlimited. State laws that “affect fares in only a ‘tenuous, remote, or peripheral... manner’ ” are not preempted (citation omitted). Id. The defendants contend that the FAAAA preempts the independent contractor statute for two reasons. First, they contend that the FAAAA preempts the statute because the second prong of G. L. c. 149, § 148B (prong two), dictates that motor carriers such as RDI perform their services using employees rather than independent contractors. They also argue that prong two cannot be severed from the statute because the Legislature drafted the statute as a conjunctive test with three inseparably intertwined prongs. Second, the defendants argue that the FAAAA preempts the application of the independent contractor statute to motor carriers such as RDI because enforcement of the plaintiffs’ misclassification claim would have an impermissible impact on motor carriers’ services. C. Prong Wo. The defendants are correct that prong two draws the independent contractor statute into the gravitational pull of the FAAAA’s preemption. Prong two provides an impossible standard for motor carriers wishing to use independent contractors. This de facto ban constitutes an impermissible “significant impact” on motor carriers that would undercut Congress’s objectives in passing the FAAAA; the statute containing prong two also forms part of an impermissible “patchwork” of State laws due to its uniqueness. See Rowe, 552 U.S. at 371, 373. A delivery driver for a motor carrier necessarily will be performing services within “the usual course of the business of the employer” whenever a court concludes that delivery services are part of its usual course of business. See G. L. c. 149, § 148B (a) (2). Prong two thereby, in essence, requires that motor carriers providing delivery services, such as RDI, use employees rather than independent contractors to deliver those services. As a result, motor carriers are compelled to adopt a different manner of providing services from what they otherwise might choose because prong two dictates the type of worker that will provide the services. This likely also would have a significant, if indirect, impact on motor carriers’ services by raising the costs of providing those services. See, e.g., G. L. c. 151, § 1 (requiring that employers pay employees minimum wage). The statute containing prong two therefore contravenes the objectives of Congress in enacting the FAAAA by “substituting] ... its own governmental commands for ‘competitive market forces’ in determining (to a significant degree) the services that motor carriers will provide.” Rowe, 552 U.S. at 372. Moreover, with prong two included, the statute contravenes the congressional objective of preventing a ‘“patchwork of [S]tate service-determining laws.” Id. at 371. Unlike the first and third prongs, prong two ‘“stands as something of an anomaly” amongst State laws regulating the classification of workers. Schwann v. FedEx Ground Package Sys., Inc., 813 F.3d 429, 438 (1st Cir. 2016). Very few States have enacted such a test, which explicitly hinges employee status on the connection between the services performed by the worker and the employer’s usual course of business. Id., and cases cited. The provision’s distinctiveness both undercuts Congress’s intent to prevent ‘“a patchwork of [S]tate service-determining laws, rules, and regulations,” Rowe, supra, and suggests that Congress did not intend to allow such provisions to stand as a “type of pre-existing and customary manifestation of the [S]tate’s police power.” Schwann, supra. D. Severability of prong two. The defendants take the view that the prongs of the independent contractor statute are nonseverable because they operate conjunctively and are inextricably intertwined. They argue that, given that prong two of the independent contract statute triggers the FAAAA’s preemption, the entire statute, on this view, must fall. This contention fails for several reasons. When compelled to strike down part of a statute, the court will, ‘“as far as possible,... hold the remainder to be constitutional and valid, if the parts are capable of separation and are not so entwined that the Legislature could not have intended that the part otherwise valid should take effect without the invalid part.” Massachusetts Wholesalers of Malt Beverages, Inc. v. Commonwealth, 41