928 F. Supp. 2d 280
D. Mass.2013Background
- McAleer, a former Prudential employee, alleges age discrimination and failure to pay sales commissions, plus related common law tort claims.
- Prudential moves to dismiss arguing timeliness, Wage Act non-coverage of commissions, and that common law claims are duplicative/preempted.
- McAleer was 59 at demotion in 2006 and 62 at termination; commissions stopped after July 24, 2009, though base salary continued until termination date.
- Prudential gave a July 24, 2009 termination letter; a November 4, 2009 letter extended the termination date for administrative reasons.
- McAleer filed EEOC claim in 2010 and an MCAD/EEOC charge in 2010-2011; he filed this action May 9, 2012; amended complaint filed Oct 1, 2012.
- The court separately analyzes statute of limitations, Wage Act viability, and common law claims, granting in part and denying in part the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the discrimination claims are timely filed | McAleer contends timely because receipt of right-to-sue letter is disputed and accrual occurred later. | Prudential argues accrual occurred at the July 24, 2009 termination, outside 300 days. | Discrimination claims time-barred; untimely. |
| Does the Wage Act cover unpaid commissions | Commissions were earned and due/determinable; Wage Act applies to commissions. | Wage Act does not apply because commissions are discretionary or not clearly due. | Wage Act covers unpaid commissions; claims may proceed. |
| Were the commissions 'definitely determined' and 'due and payable' under the Wage Act | Plan tracks cumulative sales; commissions arithmetically determinable and due when earned. | Employer discretion could prevent definite determination or payment. | Plaintiff adequately pled definite determination and due/payable status; not dismissed as a matter of law. |
| Whether common law claims are precluded by exclusive remedy under M.G.L. 151B | 151B does not repeal all common law remedies; may pursue other tort claims. | Common law claims are duplicative of discrimination claims and barred as exclusive remedy. | Common law claims survive; not precluded by exclusive remedy. |
| Whether the breach of covenant of good faith and fair dealing and tortious interference claims relate to Wage Act payments | Fortune doctrine supports implied covenant claim based on withholding earned commissions. | Claims are improper as mere proxies for wrongful termination. | Claims viable if grounded in withholding earned commissions, not solely termination. |
Key Cases Cited
- Del. State College v. Ricks, 449 U.S. 250 (U.S. 1981) (accrual even when employment continues; discriminatory decision triggers accrual)
- Eastman Kodak Co. v. O'Gara, 183 F.3d 38 (1st Cir. 1999) (statute of limitations accrual requires tangible effects or injury)
- Perry v. New England Bus. Serv., Inc., 347 F.3d 343 (1st Cir. 2003) (ERISA-related active status not controlling for Wage Act)
- Mouradian v. General Electric, 503 N.E.2d 1320 (Mass. App. Ct. 1987) (151B not exclusive; common law remedies may exist for non-termination claims)
- Melley v. Gillette Corp., 475 N.E.2d 1227 (Mass. App. Ct. 1985) (151B not sole remedy; common law viable when not purely termination-based)
- Comey v. Hill, 387 Mass. 11, 438 N.E.2d 811 (Mass. 1982) (statutory remedies do not repeal common law discrimination claims)
- Wiedmann v. The Bradford Group, Inc., 444 Mass. 698, 831 N.E.2d 304 (Mass. 2005) (commission plans and definiteness of commissions under Wage Act)
- Okerman v. VA Software Corp., 69 Mass. App. Ct. 771, 871 N.E.2d 1117 (Mass. App. Ct. 2007) (Wage Act requires commissions to be definitely determined and due/payable)
- Moores v. Greenberg, 834 F.2d 1105 (1st Cir. 1987) (Mass. law conformity on limitations and remedies)