Opinion
16-P-290
02-28-2017
Nicholas JAMIESON v. DEPARTMENT OF CORRECTION.
CORRECTED MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After hearing cross motions for summary judgment, a Superior Court judge determined that the plaintiff, Nicholas Jamieson, was entitled to return to his job as a "Correction Officer I," despite the efforts of the Department of Correction (department) to dismiss him. In addition, after a hearing on damages, a different judge awarded Jamieson damages for back pay, vacation, sick, and personal days. Both parties appeal. We amend the revised judgment to include an award of prejudgment interest, and affirm the balance of the revised judgment essentially for the reasons well explained in the judges' thorough memoranda.
Background . The facts, drawn from the memorandum of decision on the motion for summary judgment, are undisputed. Jamieson was employed by the department as a Correction Officer I. On October 18, 2007, while he was working, Jamieson injured his shoulder subduing an inmate. Shortly thereafter, he filed a workers' compensation claim. He then received temporary total disability payments for each day of work he missed from the date of injury through January 4, 2009. He received partial disability benefits from January 5, 2009, through June 21, 2012, when he requested that the workers' compensation benefits stop.
While Jamieson was collecting workers' compensation benefits, the department filed on his behalf an involuntary disability retirement application with the State Board of Retirement (retirement board); Jamieson did not object. On August 3, 2010, the retirement board denied the application, determining that Jamieson was not permanently disabled and unfit to perform the duties of a Correction Officer I. Jamieson then appealed to the Contributory Retirement Appeal Board (CRAB), which denied the appeal in December, 2011.
While the CRAB appeal was pending, the department initiated termination proceedings against Jamieson, stating that he was unfit for duty as a Correction Officer I as he was unable to perform the essential functions of the position. Jamieson did not attend the termination hearing and permitted his union to represent him. Following the hearing, the department discharged him.
Massachusetts Correction Officers Federated Union.
Jamieson then filed a grievance challenging the discharge and, in June, 2011, he filed a request for arbitration. Prior to any action on the arbitration, and at Jamieson's direction, the union withdrew the request for arbitration. Shortly thereafter, Jamieson requested that his workers' compensation benefits be stopped. He then sought reinstatement as a Correction Officer I. On October 15, 2012, the department informed him that he had no right of reinstatement and recommended that he reapply as a new hire. In February, 2013, Jamieson applied for a position as a Correction Officer I; the department did not hire him.
On December 28, 2012, Jamieson filed the present complaint against the department, seeking equitable relief and damages. The parties filed cross motions for summary judgment. A judge of the Superior Court allowed Jamieson's motion and ordered the department to reinstate him to his position as a Correction Officer I. After a hearing on damages, a different judge ordered the department to pay Jamieson back wages and reimburse him for his lost vacation, personal, and sick time. Both parties appealed.
We do not distinguish between the judges in our discussion and refer to them in the singular.
Discussion . 1. Motion for summary judgment . The department argues that the judge erred when he ordered Jamieson's reinstatement, asserting that, pursuant to G. L. c. 31, § 42, the action was untimely, and that the Superior Court lacked subject matter jurisdiction to hear the complaint.
We review the parties' claims under the familiar standard for summary judgment. See Augat, Inc . v. Liberty Mut. Ins. Co ., 410 Mass. 117, 120 (1991).
a. Timeliness of the complaint . The department asserts that Jamieson was terminated on October 22, 2010. The statute, G. L. c. 31, § 42, provides that a civil service employee must appeal a termination no later than six months after the termination. Had the department raised this defense before the Superior Court, the action might well have been time barred. However, in this case, while the department did cite "applicable statutes of limitations" as its second affirmative defense in its answer to Jamieson's complaint, the department did not argue that defense in its motion for summary judgment, or in opposition to Jamieson's motion for summary judgment. The department did raise the issue of timeliness in its motion for reconsideration. In response, the judge noted that the department could have raised the defense in its original motion and supporting memorandum. He denied the reconsideration motion on that ground and, because, as he said, he would have extended the time for Jamieson's complaint through December, 2012, the time period during which the parties were continuing to negotiate whether the application for involuntary retirement would be allowed.
General Laws c. 31, § 42, inserted by St. 1978, c. 393, § 11, provides in pertinent part: "The [S]upreme [J]udicial [C]ourt or the [S]uperior [C]ourt shall have jurisdiction over any civil action for the reinstatement of any person alleged to have been illegally discharged, removed, suspended, laid off, transferred, lowered in rank or compensation, or whose civil service position is alleged to have been illegally abolished. Such civil action shall be filed within six months next following such alleged illegal act, unless the court upon a showing of cause extends such filing time " (emphasis supplied).
"Objections, issues, or claims—however meritorious—that have not been raised in the trial court are deemed to be waived on appeal." Wynn & Wynn, P.C . v. Massachusetts Commission Against Discrimination , 431 Mass. 655, 674 (2000). See O'Connor v. Redstone , 452 Mass. 537, 550-551 (2008) (plaintiff must prove essential elements of his claim; burden is on defendant to establish time period between plaintiff's injury and complaint). We see no error.
b. Jamieson's right to bring the lawsuit . The department makes three arguments for the proposition that the Superior Court lacked jurisdiction to hear Jamieson's claims.
i. Whether Jamieson is limited to remedies under the collective bargaining agreement (CBA) . First, the department argues that Jamieson sought arbitration of his termination pursuant to the CBA and is bound by that choice. The judge noted that, after waiting approximately one year for an arbitration hearing, Jamieson had withdrawn his request for arbitration prior to any arbitration action and therefore had abandoned his claim under the CBA. As a result, he was not limited to remedies under the CBA.
As the judge noted, Jamieson's claims in this matter are statutory, and were not brought in an effort to enforce the CBA. General Laws c. 31, § 41, inserted by St. 1978, c. 393, § 11, provides that the department could not discharge, remove, or suspend a tenured employee "for a period of more than five days" without "just cause." It also provides that an aggrieved employee may file a complaint with the Civil Service Commission or pursue an action in the Supreme Judicial Court or the Superior Court. " General Laws c. 31, § 42, gives to a discharged employee alternative routes by which to seek reinstatement and other relief. Such an employee may ... bring a direct action in the Superior Court." Mello v. Mayor of Fall River , 22 Mass. App. Ct. 974, 975-976 (1986).
ii. Jamieson's substantive claims . The department argues that G. L. c. 31 is available only to correct procedural violations of Jamieson's termination process, and not to determine whether there was just cause for the termination. In support, the department cites Falmouth v. Civil Serv. Commn ., 61 Mass. App. Ct. 796 (2004), for the proposition that the Superior Court cannot modify a decision of the appointing authority. In the department's view, so long as the procedural requirements are met, the Superior Court must affirm the decision of the department.
In Falmouth , a police officer appealed his ten-day suspension for conduct unbecoming an officer to the Civil Service Commission (commission). Id . at 799. The commission determined that the ten-day suspension was not supported by the evidence and reduced the suspension to five days. Ibid . A Superior Court judge upheld the commission's decision because G. L. c. 31 gave the commission "considerable authority to modify" the town's decision. Ibid . On appeal, this court ruled that the town's employment decision was a "discretionary disciplinary decision" related "to the enforcement of neutrally applied standards of conduct," id . at 801 (quotation omitted), and reversed "the Superior Court judgment as reduced the suspension." Id . at 803.
Procedurally and substantively, Falmouth is at odds with the matter before us. This case, in contrast to Falmouth , is not a disciplinary action and the appointing authority was not required to exercise any discretion. On this record, as the judge noted, the department terminated Jamieson because he allegedly was physically unfit to perform the essential duties of a Correction Officer I. At the same time, the retirement board declined to grant Jamieson involuntary retirement because, in its view, he was not permanently disabled or unfit to perform the essential functions of the position. In this situation, the statute is clear that, if Jamieson is found to be able to perform the essential functions of a Correction Officer I, the department must allow him to "continue in his office or position." G. L. c. 32, § 16(1)(c ), as amended by St. 1982, c. 630, § 21.
iii. General Laws c. 32, § 16(1)(c) . Finally, the department contends that, under G. L. c. 32, § 16(1)(c ), Jamieson is only entitled to reinstatement after a retirement board finding, not after an appeal to CRAB. The statute provides, in pertinent part, "[i]f the board finds that [a] member should not be retired, he shall continue in his office or position without loss of compensation, subject to the provisions of sections one to twenty-eight, inclusive, as though no such application had been made." The department urges us to interpret this language to limit Jamieson's right to reinstatement to a situation where the finding of his ability to perform the essential functions of his position is made by the retirement board. Under that construction, an employee in Jamieson's situation would be reinstated to his position only if he did not appeal the retirement board's finding to CRAB. In other words, the employee would surrender his right to reinstatement if he appealed the retirement board's finding to CRAB.
The statutory definition of "the board" is the retirement board. See G. L. c. 31, § 1. The department relies on the fact that the retirement board and CRAB are "distinct, separate entities."
Citing MacDonald v. Commissioner of the Metropolitan Dist. Commn ., 33 Mass. App. Ct. 455, 461 (1992), the judge concluded that the language of the statute, "[r]easonably construed, ... requires that, if the [r]etirement [b]oard determines that a particular public employee does not qualify for involuntary retirement, then the employee must be reinstated in his or her prior position without any loss of compensation. Reinstatement in such circumstances is ‘automatic.’ " The judge also stated that "[n]othing in the language of [§] 16 or in the reported case law ... recognizes or supports the exception urged by the [d]epartment. Moreover, crediting the [d]epartment's arguments effectively would result in a waiver, by implication, of Mr. Jamieson's statutory right to appeal the [r]etirement [b]oard's decision to CRAB pursuant to G. L. c. 32, § 16(4). No basis for finding such a waiver exists in this case. See, e.g., Garrity v. Conservation Commn. of Hingham , 462 Mass. 779, 788 (2012)."
We agree. The department's interpretation is contrary to the clear intent of the statute—that an employee who should not be retired should be reinstated. See Taylor v. Burke , 69 Mass. App. Ct. 77, 80 (2007) (statute is interpreted according to its "ordinary and approved usage of the language" and construed "in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be effectuated" [quotation omitted] ). "Courts must ascertain the intent of a statute from all its parts and from the subject matter to which it relates, and must interpret the statute so as to render the legislation effective, consonant with sound reason and common sense." Ibid . (quotation omitted). To limit an employee's right to reinstatement to his position under the civil service act to only those situations where the employee forgoes a right to appeal to CRAB would force an employee to choose between a statutory right to appeal a decision of the retirement board and his right to reinstatement under G. L. c. 31, § 16(1)(c ), if he does not prevail. Indeed, a waiver of the right to appeal to CRAB "must be voluntary as well as intentional." Garrity , supra . Here, there is no evidence that Jamieson's appeal to CRAB was in any sense an intentional waiver of his right to seek reinstatement pursuant to G. L. c. 32, § 16(1)(c ).
2. Damages . After the damages hearing, the judge entered a revised judgment awarding Jamieson the stipulated amount of net back pay in the amount of $176,838.90. He determined that Jamieson was not entitled to prejudgment interest on that amount and determined that Jamieson was entitled to personal time of forty hours, sick time of 540 hours, and vacation time totaling 240 hours. Jamieson appeals, arguing that he is entitled to prejudgment interest on his award for back pay and that the judge's calculation for his sick time and vacation time are not supported by the evidence presented at the hearing.
a. Prejudgment interest . The judge determined that Jamieson's claims were limited by the general rule of sovereign immunity whereby the extent of the Commonwealth's liability is limited to that expressed by the statute, here G. L. c. 31, § 41, which permits Jamieson to recover back wages but does not provide explicitly for prejudgment interest on the award. We disagree.
In Thibodeau v. Seekonk , 52 Mass. App. Ct. 69, 72-74 (2001), the plaintiff, a firefighter, sought interest on an award for back wages. The issue was "whether [Thibodeau] was entitled to ... interest on that award from the date of his demotion under [G. L. c. 231,] § 6C[,] or from the date of filing of his complaint under [G. L. c. 231,] § 6H," the date the action was commenced. Herrick v. Essex Regional Retirement Bd ., 465 Mass. 801, 806 n.6 (2013). This court held in Thibodeau, 52 Mass. App. Ct. at 73, that the State retirement system created a contractual relationship between its members and the Commonwealth, and that G. L. c. 231, § 6C, provided that interest in contract actions was to be calculated from the date of the breach, i.e., wrongful demotion.
We are persuaded that the teaching of Thibodeau controls here. That is, Jamieson is entitled to prejudgment interest on his back wages award from the date of his unsuccessful demand to be reinstated as a Correction Officer I until the date of the revised judgment, October 29, 2015.
b. Vacation, sick, and personal time . The parties agree that Jamieson's time and conditions of employment are controlled by the CBA. However, Jamieson attacks the judge's computation of his vacation and sick time, arguing that he is entitled to have accrued vacation time converted to sick time under the CBA. For support, he relies on art. 9, § 9 of the CBA, which states, "Absences on account of sickness in excess of the authorized sick leave provided in the [a]greement (or for personal reasons not provided for under said sick leave provisions), may be charged to vacation leave upon request of the employee and subsequent approval by the [a]ppointing [a]uthority " (emphasis supplied).
Jamieson asserts that any vacation time that he forfeited under the CBA should be converted to sick time. This is not the purpose or intent of the CBA section relied on. The use of vacation time for sick leave is an accommodation that is only allowed with the approval of the appointing authority. Obviously, there is no such approval here. In addition, the purpose of permitting the use of vacation time when the employee has exhausted earned sick time is so that, when an employee has had a personal emergency or illness that requires an absence from work, his accrued vacation time may be used in lieu of time without pay. That is not the case here. We see no error in the judge's calculations regarding Jamieson's accrued vacation, sick, and personal time.
The revised judgment shall be amended to provide for prejudgment interest in accordance with G. L. c. 231, §§ 6C & 6I. As so amended, the revised judgment is affirmed. ,
To the extent that we do not discuss other arguments raised by the parties, they "have not been overlooked. We find nothing in them that requires discussion." Department of Rev . v. Ryan R ., 62 Mass. App. Ct. 380, 389 (2004) (quotation omitted).
Jamieson's request for "damages and interest" on appeal is denied.
So ordered .
Affirmed as amended.