The plaintiff appeals from a judgment entered in the Superior Court, dismissing his complaint on the defendant's motion for summary judgment. We conclude that genuine issues of material fact preclude entry of summary judgment, and we reverse the judgment.
The plaintiff's complaint seeks payment for wages during a period when he was on leave for National Guard service, pursuant to G. L. c. 33, § 59.3 The plaintiff now concedes that his argument in the Superior Court rested largely on amendments to the statute that came into effect in 2014, after the period for which he claims wages due. However, the plaintiff contends that he is entitled to wages pursuant to St. 2003, c. 137, § 1, "An Act Relative to Public Employees Serving in the Armed Forces of the United States" (act).
As a threshold matter, we reject the defendants' contention that the Wage Act, G. L. c. 149, §§ 148, 150, does not create a private right of action, or that the statute does not include an implied waiver of sovereign immunity. "Where, as here, the Legislature provides expressly that payments shall be made by a municipality or district, waiver of sovereign immunity as to those elements is obvious. Otherwise, the statute would be ineffective, and '[w]e will not impute [to the Legislature] ... an "intention to pass an ineffective statute." ' " Todino v. Wellfleet, 448 Mass. 234, 238 (2007), quoting from Bates v. Director of Office of Campaign & Political Fin., 436 Mass. 144, 173-174 (2002). We also agree with the plaintiff that his claim should have been construed to encompass an entitlement to payments pursuant to St. 2003, c. 137, § 1, even though the complaint did not refer to that act; the plaintiff's arguments at summary judgment invoked the statute, and both the motion judge and the defendants engaged the substance of the claim on that basis. See Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89 (1979) ; Gallant v. Worcester, 383 Mass. 707, 709-710 (1981).
The defendants contend, as they did before the Superior Court judge, that the plaintiff's claim fails because his National Guard service was expressly excluded from eligibility for payments under the provisions of the act. Specifically, the act states that "[f]or the purposes of this section, the words 'active service' shall not include active duty for training in the army national guard or air national guard or as a reservist in the armed forces of the United States."4 The defendants further cite the notation "ACTIVE DUTY (AD) FOR TRAINING" on the plaintiff's pay stubs included in the summary judgment record to establish that the plaintiff's service was excluded by the above-quoted language. However, the pay stubs at issue covered only a portion of the time the plaintiff was on leave for National Guard service, and his orders for the period from October 1, 2009, through September 30, 2010 (a period following the period reflected on the pay stubs), specify that he was ordered to "Full Time National Guard Duty-Operational Support."5 Combined with the plaintiff's averments that he was assigned to the counter drug division, and construed in the light most favorable to the plaintiff, see Correia v. Fagan, 452 Mass. 120, 130 (2008), the summary judgment record does not establish as a matter of undisputed fact that the plaintiff's National Guard service was excluded from eligibility for payment under St. 2003, c. 137, § 1.
Judgment reversed.