Opinion
18-P-1117
11-19-2019
Frank CONDEZ v. TOWN OF DARTMOUTH & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Frank Condez, the plaintiff, has alleged violations of G. L. c. 149, §§ 148 - 150 (the Wage Act), against his employer, the town of Dartmouth, and the town administrator, David G. Cressman. A District Court judge granted summary judgment in favor of the defendants on all but the claims for mandatory treble damages of actual unpaid wages and litigation costs. The Appellate Division affirmed the judgment and dismissed the appeal. On appeal here, the plaintiff argues that summary judgment should not have been granted in favor of the defendants with respect to (1) his right to wages from October 15, 2015, onward, (2) his retaliation claim for unpaid sick leave, and (3) prejudgment interest on his actual unpaid wages. We affirm.
Background. The town of Dartmouth Police Department employed the plaintiff between September 14, 1998, and October 15, 2015. Between October 1, 2013, and October 15, 2015, the plaintiff was on paid administrative leave pending an investigation regarding alleged misconduct. On October 15, 2015, after a disciplinary hearing pursuant to G. L. c. 31, § 41A, the Civil Service Commission voted to terminate the plaintiff's employment and he was removed from the town of Dartmouth's payroll that day.
On December 3, 2015, three days after the plaintiff filed his Wage Act claim, the town of Dartmouth issued two checks totaling $19,785.49, to compensate the plaintiff for a retroactive cost of living increase, and for unused vacation, compensatory, and court time accrued by the plaintiff up to October 15, 2015. The plaintiff was awarded treble damages on this amount but was denied prejudgment interest.
Discussion. A. Wages after October 15, 2015. An employer violates the Wage Act when it fails to pay an employee "earned" wages in a timely manner. G. L. c. 149, § 148. See Massachusetts State Police Commissioned Officers Ass'n v. Commonwealth, 462 Mass. 219, 224 (2012). While not defined in the statute, Massachusetts courts have accepted the plain meaning of the term "earned" to include wages "acquire[d] by labor, service, or performance." Awuah v. Coverall N. Am., Inc., 460 Mass. 484, 492 (2011), quoting Black's Law Dictionary 584 (9th ed. 2009). See Boston Retirement Bd. v. Contributory Retirement Appeal Bd., 441 Mass. 78, 80 n.6 (2004) (accepting Public Employee Retirement Administration Commission's definition of "earned income" as "imply[ing] some labor, management or supervision in production thereof" [citation omitted] ). It is undisputed that the plaintiff performed no work for the Dartmouth Police Department after October 1, 2015.
Because it is undisputed that the plaintiff performed no work after October 15, 2015, the plaintiff's arguments regarding the effectiveness of his termination are without merit.
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The plaintiff argues that he earned -- and was paid -- wages while on administrative leave because he was "following the orders" of his employer by not reporting to work. He contends that because he continued to follow orders by not reporting to work after October 15, 2015, he continued to "earn" wages.
It is not a Wage Act violation to reduce an employee's salary by ordering him to take a number of unpaid furlough days. See Massachusetts State Police Commissioned Officers Ass'n, 462 Mass. at 225-226. It would be illogical to conclude that an employee who is instructed to remain home with pay somehow earns wages while an employee instructed to stay home without pay does not. Instead, "the right to payment of ‘earned’ wages is secured by virtue of work or service actually performed." Calixto v. Coughlin, 481 Mass. 157, 161 (2018), quoting Massachusetts State Police Commissioned Officers Ass'n, supra at 225. Where no service was actually performed, there can be no right to wages for purposes of the Wage Act.
B. Retaliation claim. The plaintiff's retaliation claim was not included in the pleadings in the District Court. Although the plaintiff contends that his pleadings contained facts which would support the retaliation claim, he failed to link those facts to a legal theory. The District Court judge did not consider the retaliation issue and it cannot be considered for the first time now on appeal. See Henchey v. Cox, 348 Mass. 742, 747 (1965).
C. Prejudgment interest. Prejudgment interest "shall not be added to the additional amount of the award arising from the trebling of [lost wages and benefits] damages." George v. National Water Main Cleaning Co., 477 Mass. 371, 372 (2017). The District Court judge awarded only mandatory treble damages (deducting from the award the underlying lost wages and benefits paid on December 3, 2015) and litigation costs. Although G. L. c. 149, § 150, provides that "[t]he defendant shall not set up as a defence a payment of wages after the bringing of the complaint," such language does not preclude a proper denial of prejudgment interest. Because the award contained only treble damages, on which prejudgment interest cannot be awarded, the District Court judge's denial of prejudgment interest was appropriate.
Decision and order of Appellate Division affirmed.