Gendron v. Kinjawi

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

)

SONYA GENDRON, )

)

Plaintiff, )

)

v. )

) No. 1:22-cv-11910-JEK

DR. AMJAD KINJAWI and )

AMJAD KINJAWI, P.C., )

)

Defendants. )

)

MEMORANDUM AND ORDER ON PLAINTIFF’S PARTIAL

MOTION FOR SUMMARY JUDGMENT

KOBICK, J.

Plaintiff Sonya Gendron worked for four months in 2021 at defendant Amjad Kinjawi,

P.C., d/b/a Unique Dental, a dental practice owned by defendant Amjad Kinjawi. While there, she

had a range of job responsibilities, including office management and patient care, and was

developing a proposal with recommendations for improving the productivity of the dental

hygienists. She was fired in June 2021 immediately following a brief meeting between her, Dr.

Kinjawi, and Gendron’s friend, Jacqueline Tyler. At that meeting, Tyler had criticized Dr.

Kinjawi’s management of the practice and underpayment of Gendron.

Gendron brought suit in 2022 claiming, among other things, that she was misclassified as

an independent contractor instead of as an employee while she worked at Unique Dental; that the

defendants violated her right to timely and full wages under the Massachusetts Wage Act, M.G.L.

c. 149, § 148; and that the defendants failed to pay her minimum wage and overtime pay, and

retaliated against her, in violation of Massachusetts law and the Fair Labor Standards Act, 29

U.S.C. § 201 et seq. Pending before the Court is Gendron’s motion for summary judgment as to

liability on four of those claims. That motion will be granted in part and denied in part. The Court

concludes that the defendants misclassified Gendron as an independent contractor, violated her

right to timely and full payment of wages, and failed to pay her the overtime pay required by

M.G.L. c. 151, § 1A. She is thus entitled to judgment as to liability on Counts 1, 2, and 5 of her

complaint. The Court will deny her motion as to her claim of retaliation under M.G.L. c. 149,

§ 148A, because the defendants have shown a dispute of material fact as to whether Gendron was

fired because of her complaint to Tyler about the defendants’ wage law violations.

BACKGROUND

The following facts are either undisputed or recounted in the light most favorable to the

defendants, as the non-moving parties, where supported by record evidence. See Dixon-Tribou v.

McDonough, 86 F.4th 453, 458 (1st Cir. 2023). Where the defendants have admitted facts in their

answer to Gendron’s complaint, those facts are treated as undisputed, notwithstanding the

defendants’ efforts to walk back some of their admissions in opposing Gendron’s statement of

undisputed material facts. See Harrington v. City of Nashua, 610 F.3d 24, 31 (1st Cir. 2010)

(“Ordinarily, a pleading admitting a fact alleged in an antecedent pleading is treated as a binding

judicial admission, removing the fact from contention for the duration of the litigation.”); Romero

Reyes v. Marine Enters., Inc., 494 F.2d 866, 868 (1st Cir. 1974) (“That which a defendant admits

in his answer is binding upon him until he withdraws the admission by a proper amended or

supplemental pleading.” (citation and quotation marks omitted)).

I. Gendron’s Work at Unique Dental.

Dr. Kinjawi is a dentist who operates Amjad Kinjawi, P.C., d/b/a Unique Dental, a dental

practice in Attleboro, Massachusetts. ECF 50, ¶¶ 1-2. He is the President, Treasurer, and sole

shareholder of Unique Dental. Id. ¶ 3. Gendron is a licensed dental hygienist with nearly twenty

years of experience. Id. ¶ 14. From 2000 to 2004, she worked as a dental assistant at Unique Dental.

Id. ¶¶ 67-69.

In August 2020, and then again in early February 2021, Gendron and Dr. Kinjawi

reconnected and met to discuss Gendron’s ideas for improving the administration of Unique

Dental. Id. ¶¶ 70-71, 73; ECF 51-3, at 64-73; ECF 51-4, Answer No. 6. Drawing from her

experience working at other dental practices, Gendron shared ideas for specific measures that she

could implement to improve the productivity of the two dental hygienists then employed in his

office. ECF 50, ¶ 88; ECF 51-1, at 68-71; ECF 51-3, at 70-72. Based on their discussions, Dr.

Kinjawi decided to hire Gendron. See ECF 50, ¶ 15. Dr. Kinjawi understood, from their meetings,

that Gendron would make a proposal to him at some point in the future concerning the specifics

of her role, and that in the meantime, she would manage his dental practice and help him with his

backlog of insurance claims. ECF 51-1, at 68, 94; ECF 51-4, Answer No. 6. Among the managerial

duties he expected her to perform were “[o]verseeing the flow of the patients,” “dealing with

insurance companies,” and calculating and processing patients’ copays. ECF 51-1, at 94. He also

expected that she would provide direction and training to the other dental hygienists as part of her

efforts to improve their performance. See id. at 96; ECF 51-3, at 70-71. There was no written

agreement between Gendron and Dr. Kinjawi governing the terms of their working relationship or

the scope of Gendron’s job responsibilities. ECF 50, ¶ 75.

Gendron began working at Dr. Kinjawi’s dental practice on February 6, 2021. Id. ¶ 16. She

had a range of duties, including office management, patient care and dental hygiene care, oversight

of dental hygienists and administrative staff, and billing. ECF 1, ¶¶ 14, 17 (Complaint); ECF 7,

¶¶ 14, 17 (Answer); see ECF 50, ¶¶ 20, 24, 25, 28.1 Among the dental hygiene services she

provided were adult and child prophylaxis, MI paste, topical fluoride treatment, and gingivitis

treatment. ECF 50, ¶¶ 21-22. Gendron did less hygiene work than the two full-time hygienists, but

she “would jump in as needed” when they were working or fill in when they were on vacation or

not working. Id. ¶ 89; ECF 51-3, at 25; compare ECF 51-6, at 4 (hygiene work that Gendron billed

to insurance), with ECF 51-6, at 2-3 (hygiene work that the other two hygienists billed to

insurance). Gendron also scheduled Unique Dental’s patients and spoke with the other hygienists

about patient care. ECF 50, ¶¶ 26-27; ECF 51-1, at 99, 119.

While working for Unique Dental, Gendron developed and implemented several changes

to Dr. Kinjawi’s practice. ECF 50, ¶¶ 79-87. She ordered new products for Unique Dental to sell,

arranged for representatives from dental companies to come demonstrate whitening products,

introduced the concept of comprehensive treatment planning and instructed office staff on that

topic, implemented the American Dental Association’s fluoride standard of care, and devised a

new patient experience. Id. The record does not disclose the percentage of time Gendron devoted

to developing and implementing new ideas versus managing the office, providing dental hygiene

care, overseeing hygienists and administrative staff, scheduling patients, and handling billing.

Throughout her time there, however, Unique Dental treated Gendron as an independent contractor.

Id. ¶ 60.

1 These facts were all admitted in the defendants’ answer and are therefore “treated as a binding

judicial admission, removing the fact from contention for the duration of the litigation.”

Harrington, 610 F.3d at 31. The defendants now attempt to dispute these and other facts, claiming

that Gendron’s services were performed in connection with her role as a consultant rather than as

an employee, or were undertaken for the purpose of preparing a proposal on how to improve Dr.

Kinjawi’s dental practice. See ECF 50, ¶¶ 20, 24-28. But these are legal arguments, not facts, and

therefore do not generate genuine disputes of material fact under Federal Rule of Civil Procedure

56(c).

Unique Dental uses a software program called Dentrix to keep track of employees’ working

hours. Id. ¶ 4. It also uses Dentrix to maintain billing records for dental procedures. Id. ¶ 5.

Drawing from employees’ time records in Dentrix, Unique Dental uses a program called Complete

Payroll Solutions to generate paychecks or complete direct deposits. Id. ¶ 7. Unique Dental pays

its employees every two weeks, on Thursdays. Id. ¶¶ 8-9.

Dr. Kinjawi assigned Gendron a unique Dentrix ID, “SG22,” and a password to access the

system. Id. ¶¶ 17, 29. Using Dentrix, Unique Dental kept records of the dates and times Gendron

worked and billed patients for her dental hygiene services. Id. ¶¶ 23, 30. Gendron worked for

Unique Dental each calendar week from February 6, 2021 until June 11, 2021. Id. ¶ 31. Although

she had no specific hours, and Unique Dental did not post a schedule for her, she generally worked

while the office was open, “close to or in excess of 40 hours per week.” ECF 51-4, Answer No. 6;

see ECF 50, ¶ 76; ECF 51-3, at 81-82. She had a key to Unique Dental for the purpose of opening

and closing the practice, if necessary. ECF 50, ¶¶ 77-78. Unique Dental had constructive

knowledge of Gendron’s hours of work through the Dentrix records. ECF 1, ¶ 76 (Complaint);

ECF 7, ¶ 76 (Answer); see ECF 50, ¶ 64. During her time at Unique Dental, Gendron worked more

than 40 hours in 11 of the weeks, for a total of 30.5 hours of overtime. ECF 50, ¶¶ 61-63. Unique

Dental did not, however, pay Gendron overtime compensation for work in excess of forty hours

per week. ECF 1, ¶ 86 (Complaint); ECF 7, ¶ 86 (Answer); see ECF 50, ¶ 66.

Throughout her time working, Gendron received health insurance and five checks totaling

$14,000 from Unique Dental. ECF 50, ¶¶ 19, 32. These checks were written by Dr. Kinjawi and

were drawn on a Bank of America account controlled by Unique Dental. Id. ¶ 33. The checks are

dated February 26, 2021 ($2,000), March 17, 2021 ($3,000), April 5, 2021 ($3,000), May 1, 2021

($3,000), and May 24, 2021 ($3,000). Id. ¶¶ 34-38. None of these checks was accompanied by a

pay stub. Id. ¶ 39. After Dr. Kinjawi terminated Gendron’s employment on June 11, 2021, he

mailed two additional checks, in the sums of $15,309.89 and $10,000, to the address he had on file

for her. Id. ¶¶ 56, 106.2 Dr. Kinjawi mailed the first check on June 11 or June 12, 2021, but he

included no pay stub, did not tell Gendron he was mailing the check, and had no way of tracking

the check. ECF 51-1, at 150. He wrote out the second check over a month later, on July 27, 2021.

Id. at 151. Neither of these mailed checks was ever cashed. ECF 50, ¶ 57. The following year,

Unique Dental issued an “IRS Form 1099” to Gendron for $14,000, and did not make any

withholdings, including for taxes, from her pay. Id. ¶¶ 58-59.

II. Gendron’s Termination from Unique Dental.

Before and during her time working for Unique Dental, Gendron discussed strategies to

improve Unique Dental’s performance and productivity with her friend and former colleague,

Jacqueline Tyler. Id. ¶¶ 41, 74; ECF 51-5, at 34-36. Tyler has a background in dental hygiene and

a master’s degree in organizational leadership. ECF 50, ¶ 74; ECF 51-5, at 26. In 2020, she worked

with Gendron on a proposal describing best practices for dental hygiene departments, and Gendron

gave that proposal to another dentist. ECF 51-5, at 73-74. Tyler and Gendron also discussed putting

together a proposal that would be presented to Unique Dental, but the record is unclear whether

any such proposal was created. See ECF 50, ¶ 91; ECF 51-5, at 63-65, 77-79.

On June 11, 2021, Dr. Kinjawi and Gendron participated in a video meeting on the Zoom

platform with Tyler. ECF 50, ¶ 42. Dr. Kinjawi and Gendron attended the meeting together from

2 Gendron’s complaint alleged, and the defendants’ answer admitted, that “Dr. Kinjawi

summarily terminated Ms. Gendron’s employment.” ECF 1, ¶ 47 (Complaint); ECF 7, ¶ 47

(Answer). Further, in his interrogatory responses, Dr. Kinjawi averred that “Gendron had been

terminated on June 11, 2021,” and that “Unique Dental fired Ms. Gendron.” ECF 51-4, Answer

Nos. 11-12. These facts are thus admitted, notwithstanding the defendants’ late-stage effort to

claim merely that “Dr. Kinjawi ended his business relationship with the Plaintiff.” ECF 50, ¶¶ 55,

103.

Unique Dental’s office, while Tyler joined remotely. Id. ¶¶ 43-44. Before the meeting, Tyler wrote

in an email to Gendron and Dr. Kinjawi that she looked forward to meeting and developing a

strategy for Unique Dental to prosper. Id. ¶ 101; ECF 51-10. Dr. Kinjawi had not previously met

or spoken with Tyler, and he understood that, at the meeting, Gendron and Tyler would present a

business proposal to him. ECF 50, ¶¶ 97, 99-100. Going into the meeting, Dr. Kinjawi had no

intention of changing or reducing Gendron’s services. Id. ¶ 45.

Gendron had spoken with Tyler before the June 11, 2021 meeting about how she was being

paid only sporadically by Unique Dental. Id. ¶ 46; see ECF 51-5, at 61-62, 92-94. Tyler knew that

Gendron was being paid in a “piecemeal” fashion, and she believed that Gendron was “making

under minimum wage.” ECF 51-5, at 62. From these conversations, Tyler testified, she “knew that

[Gendron’s wages were not] enough for her to live on,” and she wanted Gendron to

“communicat[e] that she’s got to live” and have enough “money to pay her mortgage.” Id. at 93-

94. Tyler did not, however, know the details of the “payment arrangement” between Gendron and

Dr. Kinjawi. Id. at 62, 93-94. The defendants dispute whether Gendron’s financial hardship was

solely attributable to Unique Dental, and they point out that Gendron was receiving unemployment

compensation while she was working for Unique Dental. ECF 50, ¶ 46.

Tyler began the June 11 meeting by praising Gendron and blaming Dr. Kinjawi for Unique

Dental’s underperformance. ECF 51-1, at 139-40. She then informed Dr. Kinjawi that Gendron

was being underpaid, by saying either that he was “paying her pennies” or less than minimum

wage. Id. at 140-41; see ECF 50, ¶ 102; ECF 51-3, at 118. Dr. Kinjawi had a negative reaction to

these comments. He “took offense” to the way Tyler conveyed her comments about Gendron’s

compensation, because he thought it was “not . . . the case” that Gendron was being underpaid.

ECF 51-1, at 141. This meeting “was the first time [he had heard] about the money issue,” and he

worried that Gendron might be sharing confidential information with Tyler. Id. at 141-42

(testifying that he was “bother[ed] by “[h]ow much this lady knows about the practice or how

much Sonya was possibly just sharing with her about the practice, which part of it could be

confidential”). Dr. Kinjawi also believed that if Gendron “was concerned that she wasn’t being

paid minimum wage or that she was being paid pennies,” she should have “address[ed] it with

him,” and that “it wasn’t appropriate for her to tell someone else.” Id. at 142-43; see ECF 50, ¶ 50.

Upon hearing Tyler’s comments, Dr. Kinjawi declared that the meeting was over, left the

room, and started walking toward his office. ECF 50, ¶ 51; ECF 51-1, at 144-45. The meeting had

lasted approximately 15 minutes. ECF 50, ¶ 52. Gendron followed after him, and Dr. Kinjawi told

her that the relationship between them was not working. Id. ¶ 54. He thus terminated her

employment at Unique Dental, and she left the office within 15 or 20 minutes of her firing. ECF

1, ¶ 47 (Complaint); ECF 7, ¶ 47 (Answer); ECF 51-1, at 146-47; ECF 51-4, Answer Nos. 11-12.

At that time, Gendron did not know what the minimum wage was, nor can she now remember if

she determined in 2021 whether she was being paid the minimum wage. ECF 50, ¶¶ 104-05.

III. Procedural History.

Gendron filed this lawsuit against Dr. Kinjawi and Unique Dental in November 2022. ECF

1. Against both defendants, her complaint asserts eight counts: misclassification as an independent

contractor instead of as an employee, in violation of M.G.L. c. 149, § 148B (Count 1); a violation

of M.G.L. c. 149, § 148, for failure to pay timely wages (Count 2); retaliation, in violation of

M.G.L. c. 149, § 148A (Count 3); violations of M.G.L. c. 151, §§ 1 and 1B, for failure to pay

minimum wage and overtime wages (Counts 4 and 5, respectively); and violations of the Fair

Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., for failure to pay minimum wage, failure

to pay overtime wages, and retaliation for complaining about unpaid wages (Counts 6, 7, and 8,

respectively). Against Unique Dental, Gendron asserts further claims for breach of contract and

quantum meruit/unjust enrichment (Counts 9 and 10, respectively). After discovery, Gendron

moved for partial summary judgment on liability only as to Counts 1, 2, 3, and 5. ECF 47. After

receiving the defendants’ opposition and Gendron’s reply, the Court held a hearing and took the

motion under advisement. ECF 51, 53, 56.

STANDARD OF REVIEW

Summary judgment is appropriate when, based upon the record, “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). A genuine dispute is “one that must be decided at trial because the evidence, viewed

in the light most flattering to the nonmovant, would permit a rational factfinder to resolve the issue

in favor of either party.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.

1990) (citation omitted). To prevail, the moving party must show that “there is no factual

determination which a ‘rational factfinder’ could make as to the ‘existence or nonexistence’ of a

fact that ‘has the potential to change the outcome of the suit.’” Gibson Found., Inc. v. Norris, 88

F.4th 1, 5 (1st Cir. 2023) (quoting Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4-5 (1st

Cir. 2010)). Courts “must consider the record and the reasonable inferences drawn therefrom in

the light most favorable to the nonmovant,” but “need not credit ‘conclusory allegations,

improbable inferences, and unsupported speculation.’” Dixon-Tribou, 86 F.4th at 458 (quoting

Lahens v. AT&T Mobility Puerto Rico, Inc., 28 F.4th 325, 333 (1st Cir. 2022)). The non-moving

party may not simply “rest upon mere allegation or denials of his pleading,” but instead must

“present affirmative evidence.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986).

DISCUSSION

I. Misclassification Claim.

Gendron contends that the undisputed record establishes, as a matter of law, that she was

misclassified as an independent contractor while she was working for Unique Dental. The

Commonwealth’s independent contractor statute, M.G.L. c. 149, § 148B, “evinces the

Legislature’s broad, remedial intent ‘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.’” Patel v. 7-Eleven, Inc., 489 Mass. 356, 360 (2022) (“Patel I”)

(quoting Depianti v. Jan-Pro Franchising Int’l, Inc., 465 Mass. 607, 620 (2013)). To that end, it

creates a presumption that “an individual performing any service” for an alleged employer “shall

be” considered an employee. M.G.L. c. 149, § 148B(a); see Patel I, 489 Mass. at 360. To rebut

that presumption, the employer bears the burden to demonstrate, by a preponderance of the

evidence, the following three statutory prongs of what has come to be known at the “ABC test”:

(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.

M.G.L. c. 149, § 148B(a); see Patel I, 489 Mass. at 360. The employer’s failure “‘to satisfy any

prong will result in the individual’s classification as an employee.’” Patel v. 7-Eleven, Inc., 494

Mass. 562, 567 (2024) (“Patel II”) (quoting Sebago v. Boston Cab Dispatch, Inc., 471 Mass. 321,

327 (2015)).

The defendants do not dispute that Gendron performed services for Dr. Kinjawi and Unique

Dental. See Patel II, 494 Mass. at 567 & n.14 (the statutory term “performing any service” means

“carrying out any labor in the interest, or under the direction, of the putative employer, usually

(but not always) for remuneration”). Thus, the question before the Court is whether the defendants

can show a genuine dispute of material fact concerning all three prongs of the ABC test. Gendron

contends that she is entitled to summary judgment because any rational factfinder would conclude,

based on the undisputed record, that she must prevail on the first prong because she was subject to

Unique Dental’s direction or control and, alternatively, that she must prevail on the second prong

because the services she rendered were part of Unique Dental’s usual course of business. The Court

agrees that Gendron prevails as a matter of law on the second prong, and therefore does not address

whether the evidence shows that she was free from Unique Dental’s direction or control.

To prevail on the second prong of the ABC test, the putative employer must show that the

service is performed outside its usual course of business. See M.G.L. c. 149, § 148B(a)(2). To

determine the usual course of business, courts look to how the employer defines its business and

“‘whether the service the individual is performing is necessary to the business of the employing

unit or merely incidental.’” Sebago, 471 Mass. at 333 (quoting An Advisory from the Attorney

General’s Fair Labor Division on M.G.L. c. 149, § 148B, Advisory 2008/1, at 6); see also Carey

v. Gatehouse Media Massachusetts I, Inc., 92 Mass. App. Ct. 801, 805-08 (2018). A “service need

not be the sole, principal, or core product that a business offers its customers, or inherently essential

to the economic survival of that type of business, in order to be furnished in the usual course of

that business.” Carey, 92 Mass. App. Ct. at 808.

Unique Dental is a dental practice and describes itself as such. Among the services that

Gendron performed for Unique Dental were office management, including scheduling patients,

handling billing and copays, processing insurance claims, and overseeing the dental hygienists and

administrative staff. She also performed patient care and dental hygiene services, including

prophylaxis for adults and children, topical fluoride treatment, and gingivitis treatment. Unique

Dental offers no serious argument that these services are not performed in the usual course of

business of a dental practice. The role of a dental hygienist is necessary for, not incidental to, any

dentist’s business, as hygienists provide a portion of the dental care that patients purchase. The

managerial tasks undertaken by Gendron—patient scheduling, claims processing, and billing—are

likewise necessary components of any dental practice. No reasonable jury could conclude that

these services fall outside the usual course of Unique Dental’s business. See Siciliano v. Cranberry

Dental Assocs., Inc., No. 2083CV00233, 2022 WL 22888661, at *1, *3 (Mass. Super. Ct. Feb. 08,

2022) (dental practice employer failed to carry its burden on the second prong as to plaintiff who

worked “as a front desk receptionist to answer phones, book appointments, file insurance claims,

process payments, bill patients for services rendered and all the associated duties that are regular

and usual for a front desk receptionist at a dental office” (quotation marks omitted)).

The defendants nevertheless maintain that Gendron’s services fall outside the usual course

of Unique Dental’s business because they were undertaken for the purpose of creating a proposal

on improving the productivity and functionality of the dental practice. This argument runs up

against the Supreme Judicial Court’s holding that intent plays no role in the misclassification

analysis. As that Court explained in Somers v. Converged Access, Inc., “[n]one of the statutory

criteria speaks of the employer’s intent; rather, all speak of the nature of the service provided.”

454 Mass. 582, 591 (2009). Thus, even if the worker and employer agree that the worker should

be classified as an independent contractor, the worker will be regarded as an employee under

Massachusetts law unless the employer can establish all three elements of the ABC test. Id.

Because Section 148B “is a strict liability statute, . . . if an employer misclassifies an employee as

an independent contractor,” even when acting in good faith, “the employer must suffer the

consequences.” Id. Accordingly, even assuming favorably to the defendants that the evidence

shows that Gendron’s purpose in providing dental hygiene and managerial services was to create

a proposal for improving the dental practice, that purpose does not alter the conclusion that she

performed her services in the usual course of Unique Dental’s business.

The defendants separately argue that because Gendron provided other services to Unique

Dental—for example, she ordered new products for Unique Dental to sell, introduced the concept

of comprehensive treatment planning, implemented the fluoride standard of care, and arranged

demonstrations of teeth whitening products—the evidence shows a dispute of material fact on the

second prong. This argument fails for multiple reasons. First, these services are also self-evidently

part of the usual course of business of a dental practice. Second, the Court rejects the defendants’

suggestion that when a worker strives to improve her workplace through new ideas and business

strategies, such reforms are outside the employer’s usual course of business. That rule would

discourage employee innovation—an undesirable result for employers and employees alike—and

finds no footing in the text or purpose of Section 148B.

Third, to the extent that the defendants argue that “most” of Gendron’s work was related

to enhancing the productivity and profitability of Unique Dental, rather than related to office

management and patient care, they have not introduced evidence that creates a material dispute of

fact on that issue. ECF 51, at 10. The defendants have pointed to no evidence that breaks down the

percentage of time that Gendron devoted to the various services she performed for Unique Dental.

The Dentrix time records simply reflect the times that Gendron “punched in” and “punched out”

from work. See ECF 51-2. The Dentrix patient care records do demonstrate that Gendron devoted

significantly less time to hygiene care than the other dental hygienists, but do not reflect the amount

of time she devoted to office management. See ECF 51-6. Dr. Kinjawi’s deposition testimony, if

anything, undermines his argument. When asked what tasks Gendron performed in her first week

on the job, he testified that “[s]he was on the phone a lot” communicating with Unique Dental’s

phone company about a problem with its fax number; she scheduled patients; she talked with the

hygienists about patient care; and she brought in “a couple of” dental company representatives.

ECF 51-1, at 98-99. He could not remember Gendron performing any other duties in the “first

couple of weeks that she worked for the practice,” and he confirmed that her “duties stay[ed]

roughly the same throughout the time [she] worked for the practice.” Id. at 99. Construed in the

light most favorable to the defendants, the record thus demonstrates that Gendron performed

managerial and patient care services “on a regular or continuous basis” for Unique Dental. Weiss

v. Loomis, Sayles & Co., Inc., 97 Mass. App. Ct. 1, 8 (2020) (quotation marks omitted).

While Section 148B does not prevent a dental practice from working with someone as an

independent contractor to observe its functions, interview its employees, and develop ideas to

increase profitability, the evidence in this case shows that Gendron did far more than that for

Unique Dental. Because no reasonable jury could find, based on the undisputed record, that

Gendron worked outside the usual course of Unique Dental’s business, Gendron was improperly

classified as an independent contractor instead of as an employee, and is therefore entitled to

summary judgment on Count 1.

II. Claim for Untimely and Incomplete Wages.

Gendron next contends that, because she was an employee rather than an independent

contractor, Unique Dental violated M.G.L. c. 149, § 148 by failing to timely pay her the full wages

she earned. The Massachusetts Wage Act requires employers to “pay weekly or bi-weekly each

such employee the wages earned by him to within six days of the termination of the pay period

during which the wages were earned if employed for five or six days in a calendar week.” M.G.L.

c. 149, § 148. It further specifies that “any employee discharged from such employment shall be

paid in full on the day of his discharge.” Id. The statute “aims to ‘protect wage earners from the

long-term detention of wages by unscrupulous employers as well as [to] protect society from

irresponsible employees who receive and spend lump sum wages.’” Devaney v. Zucchini Gold,

LLC, 489 Mass. 514, 520 (2022) (quoting Melia v. Zenhire, Inc., 462 Mass. 164, 170 (2012)). To

that end, the Wage Act creates strict liability for employers, see id. at 521, and further deems the

“‘president and treasurer of a corporation and any officers or agents having the management of

such corporation . . . to be the employers of the employees . . . within the meaning of [the statute],’”

Lynch v. Crawford, 483 Mass. 631, 632 (2019) (quoting M.G.L. c. 149, § 148).

The defendants do not dispute that, if Gendron was an employee, they violated the Wage

Act by failing to pay her weekly or bi-weekly. There were 19 days between her first and second

check, 19 days between her second and third check, 26 days between her third and fourth check,

and 23 days between her fourth and fifth check. Because Gendron has moved for summary

judgment as to liability, but not damages, the Court’s analysis ends there: The defendants have

conceded they did not pay Gendron in a timely manner, and because the Wage Act creates strict

liability, no reasonable jury could find that the defendants did not violate the timeliness

requirements of the Wage Act. Furthermore, both Unique Dental and Dr. Kinjawi, as Unique

Dental’s President and Treasurer, are liable. See M.G.L. c. 149, §§ 148, 148B(d).

Similarly, the defendants do not dispute that Gendron was not paid “in full on the day of

[her] discharge.” M.G.L. c. 149, § 148; see ECF 50, ¶ 56. Dr. Kinjawi asserts that he mailed two

checks to Gendron after her termination, though he acknowledges that the checks were never

cashed. But his mailing of checks to Gendron after her firing has no bearing on the determination

of liability, because “the express language of the Wage Act” is “clear and emphatic” that “‘any

employee discharged from such employment,’ such as the plaintiff, ‘shall be paid in full on the

day of [her] discharge.’” Reuter v. City of Methuen, 489 Mass. 465, 470 (2022) (quoting M.G.L.

c. 149, § 148). Because the defendants do not dispute that they failed to pay Gendron in full on the

day of her discharge, and because the Wage Act creates strict liability, any reasonable jury would

find that the defendants violated the Wage Act in failing to pay Gendron in full on her final day of

work. Gendron is, accordingly, entitled to summary judgment as to liability on Count 2.

III. Overtime Compensation Claim.

Gendron next claims that she is entitled to summary judgment on Count 5 because Unique

Dental did not pay her overtime compensation when she worked more than 40 hours per week.

With exceptions not relevant here, the Massachusetts overtime statute provides that “no employer

in the commonwealth shall employ any of his employees in an occupation . . . for a work week

longer than forty hours, unless such employee receives compensation for his employment in excess

of forty hours at a rate not less than one and one half times the regular rate at which he is

employed.” M.G.L. c. 151, § 1A. The purposes of this statute “are ‘to reduce the number of hours

of work, encourage the employment of more persons, and compensate employees for the burden

of a long workweek.’” Sullivan v. Sleepy’s LLC, 482 Mass. 227, 233-34 (2019) (quoting Mullaly

v. Waste Mgmt. of Massachusetts, Inc., 452 Mass. 526, 531 (2008)).

Gendron is entitled to overtime compensation under this statute. She was an employee of

the defendants, and it is undisputed that she worked more than 40 hours per week for 11 of the

weeks in which she was employed by Unique Dental. ECF 50, ¶¶ 61-63. Further, the defendants

admitted in their answer that Unique Dental did not pay Gendron overtime compensation, at a rate

of 1.5 times her regular rate of pay, in the weeks during which she worked more than 40 hours.

ECF 1, ¶ 86 (Complaint); ECF 7, ¶ 86 (Answer); see ECF 50, ¶ 66. The defendants nevertheless

contend that Gendron is not entitled to overtime compensation because (1) they had no knowledge

that Gendron was working more than forty hours a week, and (2) Gendron is not entitled to

overtime compensation under M.G.L. c. 151, § 1A because she already earned more than the

minimum wage. Both arguments fail.

In the context of overtime claims under M.G.L. c. 151, §§ 1A and 1B, “an employee must

prove both that he incurred unpaid overtime work, and that the employer ‘had actual or

constructive knowledge that he was working overtime.’” Vitali v. Reit Mgmt. & Rsch., LLC, 88

Mass. App. Ct. 99, 103 (2015) (quoting Prime Commc’ns, Inc. v. Sylvester, 34 Mass. App. Ct. 708,

709 (1993)). “The knowledge inquiry requires an assessment of what the employer knew or should

have known,” and turns on the employee’s ability to marshal evidence “that the employer had

actual or constructive knowledge of the unpaid overtime.” Id. at 103-04. Notably, “[t]o the extent

that an employee has reported his hours in accordance with the employer’s mandated timekeeping

procedures, the employer’s knowledge of those hours is not in doubt.” Id. at 104. Here, it is

undisputed that the defendants had constructive knowledge of Gendron’s hours through her

properly reported Dentrix time records. Gendron’s complaint alleged, and the defendants’ answer

admitted, that “Unique Dental had actual and/or constructive knowledge of Plaintiff’s hours of

work, including without limitation because Unique Dental kept time records for Plaintiff.” ECF 1,

¶ 76 (Complaint); ECF 7, ¶ 76 (Answer). The defendants now dispute, based on Dr. Kinjawi’s

deposition testimony, that he had actual knowledge that Gendron had worked over 40 hours per

week until after she was terminated. See ECF 50, ¶¶ 64, 95. The defendants do not, however,

dispute that they had constructive knowledge, based on Gendron’s Dentrix records, that she

repeatedly worked over 40 hours per week. In light of the defendants’ answer, that fact is admitted,

and is sufficient to demonstrate the defendants’ knowledge of Gendron’s overtime work. See

Harrington, 610 F.3d at 31 (instructing courts to “parse the particular admission in each case”);

Vitali, 88 Mass. App. Ct. at 104.

Trying a different tack, the defendants maintain that because Gendron earned more than

minimum wage, and there was no agreement between Gendron and Dr. Kinjawi on her rate of pay,

she is not entitled to overtime compensation. This argument is flatly inconsistent with the statute.

True, the parties dispute whether Gendron and Dr. Kinjawi came to an oral agreement about her

rate of compensation and what Gendron’s hourly rate of pay should have been. See, e.g., ECF 51-

1, at 149 (Dr. Kinjawi testifying that he estimated Gendron’s rate at $41 an hour in his post-

termination calculations); ECF 51-9, at 4 (Gendron arguing, in post-termination correspondence,

that she should have been paid $58 an hour). And the term “regular rate” in M.G.L. c. 151, § 1A

is determined based on “[t]he amount that an employee is regularly paid for each hour of work.”

464 Code Mass. Regs. 27.02; see Sullivan, 482 Mass. at 231. Whether an oral agreement between

Dr. Kinjawi and Gendron existed, and what Gendron’s appropriate rate of compensation should

have been, will be questions for the jury. But once that is decided, Massachusetts law is clear that

Gendron is entitled to 1.5 times that “regular rate” for any hours over 40 worked each week. See

M.G.L. c. 151, § 1A; Somers, 454 Mass. at 584 (employers “may not . . . reduce their obligation

to make overtime payments based on the argument that, had they known they were obliged to pay

overtime, they would have paid the employee a lower wage for the first forty hours worked in a

week”).3 Whether or not Gendron was paid more than minimum wage has no bearing on that

3 The defendants cite Sullivan v. Sleepy’s LLC for the proposition that, absent an agreement

setting a rate of pay between the parties, there can only be an overtime violation if the total pay

would violate a minimum-wage employee’s rights under M.G.L. c. 151, § 1A. ECF 51, at 13 (citing

calculation. Because Gendron was an employee of the defendants who worked over 40 hours per

week during some weeks of her employment, and because she was not paid overtime compensation

for that work, she is entitled to summary judgment as to liability on Count 5.

IV. Retaliation Claim.

Finally, Gendron contends that she is entitled to summary judgment on her claim of

retaliation under M.G.L. c. 149, § 148A. That statute provides: “No employee shall be penalized

by an employer in any way as a result of any action on the part of an employee to seek his or her

rights under the wages and hours provisions of this chapter,” and “[a]ny employer who discharges

or in any other manner discriminates against any employee because such employee has made a

complaint to the attorney general or any other person . . . shall have violated this section.” M.G.L.

c. 149, § 148A. The purpose of the statute is “to encourage enforcement of the wage laws by

protecting employees who complain about violations of the same.” Smith v. Winter Place LLC,

447 Mass. 363, 368 (2006); see also Fernandes v. Attleboro Hous. Auth., 470 Mass. 117, 125

(2014) (“To ensure that employees are not penalized for asserting their rights to earned wages, the

Legislature included an antiretaliation clause in the Wage Act, G.L. c. 149, § 148A, to protect

employees . . . who complain about violations of the statute.”).

To prevail on a claim of retaliation under Section 148A, Gendron must demonstrate that

(1) she “engaged in conduct that the . . . Massachusetts wage and tips law protect[s],” (2) the

defendants subjected her to an adverse employment action, and (3) she was subject to the adverse

employment action “because of [her] protected conduct.” Travers v. Flight Servs. & Sys., Inc., 808

F.3d 525, 531 (1st Cir. 2015). “The third element requires there to be ‘a causal connection . . .

Sullivan, 482 Mass. at 231). Sullivan is inapposite because it announced a rule for 100%

commission employees, not employees without written employment agreements. See 482 Mass. at

238.

between the protected conduct and the adverse action.’” Rooney v. Leerink Partners, LLC, No.

1:24-cv-11165-AK, 2025 WL 417785, at *7 (D. Mass. Feb. 6, 2025) (quoting Blackie v. Maine,

75 F.3d 716, 723 (1st Cir. 1996)). Gendron contends that, as a matter of law, she prevails on all

three prongs of the test. In her view, she engaged in protected conduct by complaining to Tyler

that Dr. Kinjawi and Unique Dental were underpaying her and paying her only sporadically, and

the evidence shows that Dr. Kinjawi fired her because she made those complaints to Tyler. The

defendants do not dispute that Gendron was subject to an adverse employment action when she

was fired, but they contend that a genuine dispute of material fact exists as to whether Gendron

engaged in protected conduct and whether she was terminated because of that conduct.

The question whether an employee engages in protected conduct under Section 148A by

complaining to “persons unrelated to either the business enterprise or the enforcement of the wage

laws” remains open in Massachusetts. Winter Place, 447 Mass. at 367 (reserving on that question).

Based on the text and remedial purpose of the statute, the Court concludes that Massachusetts

courts would deem such complaints about wage violations to be protected conduct. As a remedial

statute, Section 148A, like Section 148B, is “entitled to liberal construction.” Depianti, 465 Mass.

at 620 (quotation marks omitted). And the Supreme Judicial Court has stressed that “[e]mployment

statutes in particular are to be liberally construed, with some imagination of the purposes which

lie behind them.” Id. (quotation marks omitted). Consistent with its protective purpose, see

Fernandes, 470 Mass. at 125, the text of Section 148A uses markedly broad language. It forbids

employers to penalize employees “as a result of any action” to vindicate rights under the wage

laws. M.G.L. c. 149, § 148A (emphasis added). And it declares that an employer engages in

unlawful retaliation if it terminates an employee “because such employee has made a complaint to

the attorney general or any other person.” Id. (emphasis added). Last year, the Supreme Judicial

Court construed the term “any” in Section 148B, the neighboring statute, to have “‘an expansive

meaning, that is, one or some indiscriminately of whatever kind,’ signaling the breadth” the

Legislature intended to convey. Patel II, 494 Mass. at 567 n.14 (quoting Dep’t of Hous. & Urb.

Dev. v. Rucker, 535 U.S. 125, 131 (2002)). Having twice used the term “any” in Section 148A, the

Legislature likewise conveyed its intent to cover complaints about wage law violations to “any

other person,” including individuals, like Tyler, unrelated to the business or to enforcement of

those laws. See Psy-Ed Corp. v. Klein, 459 Mass. 697, 708 (2011) (construing the term “any

person” in Chapter 151B’s anti-retaliation provision broadly, because “in light of the c. 151B’s

broad remedial purposes, it would be an error to imply . . . a limitation where the statutory language

does not require it”); Commonwealth v. Smith, 431 Mass. 417, 424 (2000) (“[S]tatutes which relate

to a common subject matter ‘should be construed together so as to constitute an harmonious

whole.’” (quoting Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513-14 (1975))).

The defendants contend that, even if Gendron’s complaints to Tyler are covered by the text

of Section 148A, her complaints do not constitute protected conduct because her complaints were

not based on a reasonable, good faith belief of a statutory violation. To “maintain an actionable

claim under § 148A, a plaintiff is not obliged to successfully prove her right to seek recovery of

the untimely paid ‘wages’ in question,” but she must establish that she “reasonably believed the

remuneration in question fell within the scope of the Wage Act.” Fraelick v. PerkettPR, Inc., 83

Mass. App. Ct. 698, 706 (2013) (citing Abramian v. President & Fellows of Harvard College, 432

Mass. 107, 121 (2000)). This is not a high bar. See Gillis v. Lowell Health Care Ctr., No. 16-cv-

10497-NMG, 2016 WL 4074138, at *3 (D. Mass. July 29, 2016) (“[T]he law does not require an

accurate or technically precise belief, but only a reasonable belief that said right was violated.”

(emphasis omitted)); cf. Ray v. Ropes & Gray LLP, 799 F.3d 99, 108 (1st Cir. 2015) (Title VII’s

anti-retaliation provision “protects an employee for . . . informally opposing an employment

activity that might violate Title VII.” (emphasis added)).

Here, the undisputed evidence is that Gendron complained to Tyler about two perceived

violations of the wage laws. She complained (1) that she was being paid only sporadically, in a

“piecemeal” fashion, and (2) that the defendants were underpaying her, such that Tyler believed

that Gendron might not have been making minimum wage. ECF 51-5, at 62, 93; see ECF 50, ¶ 46.

The defendants object that Gendron could not have reasonably believed that she was not making

minimum wage, because she did not calculate in 2021 whether her wages in fact amounted to

minimum wage, nor does she know what the minimum wage was in 2021. But Gendron also

complained to Tyler regarding the sporadic nature of her payments, and the defendants do not

contend that this complaint was not based on a good faith belief of a wage law violation. Indeed,

as discussed, Dr. Kinjawi’s irregular payments to Gendron did violate M.G.L. c. 149, § 148. See

Fraelick, 83 Mass. App. Ct. at 708 (“Wages must be paid both in a timely manner and in full.”).

The defendants have thus failed to identify a dispute of material fact regarding whether Gendron’s

complaint to Tyler was rooted in a good faith belief that the defendants were violating her rights

under the wage laws. Accordingly, the Court concludes that Gendron has met her burden, as a

matter of law, to show that she engaged in protected conduct.

To prevail on summary judgment, Gendron must also demonstrate, as a matter of law, that

Dr. Kinjawi fired her because of her complaint about wage law violations to Tyler. M.G.L. c. 149,

§ 148A. This requires her to demonstrate that Dr. Kinjawi’s “‘desire to retaliate against [her] was

a determinative factor in [his] decision to terminate [her] employment.’” Winter Place, 447 Mass.

at 364 n.4 (quoting Abramian, 432 Mass. at 121). “Although a ‘determinative cause’ of an adverse

employment decision is a ‘but for’ cause, it need not be ‘the only cause.’” Edwards v.

Commonwealth, 488 Mass. 555, 573 (2021) (citing Lipchitz v. Raytheon Co., 434 Mass. 493, 506

n.19 (2001)). While the question is close, the Court concludes that Gendron has not met her burden,

because a reasonable jury could conclude that her complaint to Tyler about wage violations was

not a determinative factor in Dr. Kinjawi’s decision to terminate her. At his deposition, Dr. Kinjawi

gave three reasons for his reaction to Tyler’s accusations in the June 11, 2021 meeting and his

subsequent decision to terminate Gendron: (1) he was offended by the way Tyler conveyed her

criticisms of him, (2) he thought that Gendron might have been sharing confidential information

about his business with Tyler, and (3) he thought it inappropriate for Gendron to speak to someone

other than him about her wage complaints. ECF 51-1, at 141-43. Based on the third reason, a

reasonable jury could conclude that Gendron’s protected conduct, and Dr. Kinjawi’s desire to

retaliate against her for that conduct, was a determinative factor in the decision to fire her. But if

it accepted only the first reason, the jury could find that Dr. Kinjawi was upset that he was being

blamed for the state of his business at a meeting convened to discuss ways to improve that business.

Similarly, if it accepted only the second reason, the jury could find that Dr. Kinjawi fired Gendron

because he feared that she was sharing confidential business information with Tyler. Drawing all

inferences in favor of the defendants, as the nonmoving parties, the Court cannot say that a

reasonable jury could only conclude that Gendron’s protected conduct was a but-for cause of her

termination. Her motion for summary judgment on the retaliation claim is accordingly denied. It

will be for the jury to determine whether there exists a sufficient causal nexus between Gendron’s

protected conduct and her termination to prevail on her retaliation claim.

CONCLUSIONS AND ORDERS

For the foregoing reasons, the plaintiff’s partial motion for summary judgment, ECF 47, is

GRANTED in part and DENIED in part. The plaintiff is entitled to judgment as to liability on

Counts 1, 2, and 5. The plaintiff’s motion is denied with respect to Count 3.

SO ORDERED.

/s/ Julia E. Kobick

JULIA E. KOBICK

Dated: February 25, 2025 UNITED STATES DISTRICT JUDGE