Wrongful Termination Cases

David Fernandes vs. Attleboro Housing Authority. Bristol. September 4, 2014. November 19, 2014. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Labor, Wages. Superior Court, Jurisdiction. Jurisdiction, Primary jurisdiction, Superior Court, Civil Service Commission. Public Employment, Termination, Reinstatement of personnel. Civil Service, Applicability of provisions, Termination of employment, Reinstatement of personnel. Employment, Termination, Retaliation. Damages, Additur. Practice, Civil, Additur, Attorney’s fees. Housing Authority. Municipal Corporations, Housing authority. A Superior Court judge had subject matter jurisdiction over claims in a civil action brought by a plaintiff who was employed by a municipal housing authority as a mechanic, i.e., that the employer had violated the Wage Act, G. L. c. 149, §§ 148 and 148A, by intentionally misclassifying the plaintiff and thereby failing to pay him the wages to which he was entitled, and by terminating the plaintiff in retaliation for complaining about the nonpayment of earned wages and filing a complaint with the Attorney General’s office, where nothing in the civil service law, G. L. c. 31, §§ 41-45, suggested that the plaintiff was required to bring his action before the Civil Service Commission (commission), especially given that G. L. c. 31, § 42, suggests that the Legislature has not granted to the commission exclusive authority over all challenged employment actions and given also that the nature of the plaintiff’s claims was such that resolution of them did not require the special expertise of the commission and their resolution by the Superior Court did not interfere with the development and administration of policies under the civil service law. [120-127] In a civil action alleging a violation of the Wage Act, G. L. c. 149, §§ 148 and 148A, the judge properly declined to order the plaintiff’s reinstatement to a higher position with full seniority, where reinstatement was not an available remedy for violations of the Wage Act [127-130]; likewise, the judge did not abuse his discretion in declining to order a new trial on the question of damages or to order additur, where the damages that the jury awarded were not unreasonable [130-132]. This court concluded that, under G. L. c. 149, § 150, a litigant who prevailed in an action alleging violations of the Wage Act was entitled to recover reasonable appellate attorney’s fees and costs. [132] Civil action commenced in the Superior Court Department on November 13, 2009. The case was heard by Robert J. Kane, J., and motions for judgment notwithstanding the verdict, for reinstatement, and for a new trial or for additur were heard by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Maria M. Scott for the plaintiff. David D. Dowd for the defendant. Spina, J. David Fernandes was employed by the Attleboro Housing Authority (AHA) as a maintenance mechanic II from January 16, 2001, until his termination on May 29, 2009. Approximately six months later, he commenced an action in the Superior Court against the AHA for alleged violations of the Wage Act, G. L. c. 149, §§ 148 and 148A. Fernandes claimed that the AHA violated § 148 by intentionally misclassifying his position as maintenance mechanic II, instead of maintenance mechanic I, and thereby failing to pay him the wages to which he was entitled. Fernandes also alleged that the AHA violated § 148A by terminating him in retaliation for complaining about nonpayment of earned wages and filing a complaint with the Attorney General’s office. Following a trial in January, 2012, a jury, in response to special questions, found in favor of Fernandes on both claims. The jury awarded damages against the AHA in the amount of $2,300 for unpaid wages due to misclassification, and $130,000 for lost wages due to retaliation. The parties then filed numerous posttrial motions. Of relevance to the present appeal, the AHA filed a motion for judgment notwithstanding the verdict, contending that the Superior Court lacked subject matter jurisdiction over Fernandes’s wage and retaliation claims because, as a housing authority employee, Fernandes was required to bring such claims before the Civil Service Commission (commission) for resolution. Fernandes filed a motion for reinstatement to the position of maintenance mechanic I with full seniority as if he had not been terminated from employment on May 29, 2009, and a motion for a new trial on damages or, in the alternative, for additur. Following hearings, the trial judge denied all three motions in a thorough and well-reasoned decision. First, after considering the purposes of and remedies afforded by the Massachusetts civil service law, G. L. c. 31, §§ 41-45, and the Wage Act, G. L. c. 149, §§ 148, 148A, 150, the judge discerned no legislative intent to confine a housing authority employee to the procedures set forth in the civil service law where his termination implicated violations of his rights under the Wage Act. Accordingly, the judge concluded that the AHA was not entitled to judgment notwithstanding the verdict. Next, with respect to Fernandes’s motion for reinstatement, the judge was unpersuaded that G. L. c. 149, § 150, authorized such a remedy for retaliatory conduct in the absence of clear statutory language to that effect. Finally, the judge concluded that although the jury’s calculation of $130,000 in damages for lost wages due to retaliation was less than the amount to which Fernandes thought he was entitled, the award was neither unreasonable nor so unduly small as to suggest the need for additional relief. In accordance with G. L. c. 149, § 150, the judge proceeded to award Fernandes treble damages in the amount of $6,900 for unpaid wages and $390,000 for retaliatory termination, plus reasonable attorney’s fees in the amount of $36,667.50 and costs of $1,087.36. The parties’ cross appeals were entered in the Appeals Court, and we transferred the case to this court on our own motion. For the reasons that follow, we conclude that the Superior Court had subject matter jurisdiction over Fernandes’s claims under the Wage Act, that reinstatement to employment is not an available remedy for violations of such statutory scheme, and that the judge did not abuse his discretion in denying Fernandes’s motion for additur. Accordingly, the judgment of the Superior Court is affirmed. 1. Background. We briefly recite the facts the jury could have found from the evidence at trial, reserving some details for later discussion. When Fernandes was hired by the AHA in 2001, he was classified as a maintenance mechanic II. It was an entry-level position, considered to be in the nature of an apprenticeship to a higher job classification. In 2003, the executive director of the AHA, John Zambarano, implemented changes to the duties of its maintenance department workers. Pursuant to these changes, Fernandes was required to perform more diversified work that he believed was consistent with the position of maintenance mechanic I, which required a greater skill level and paid a higher salary than he was receiving. Notwithstanding Fernandes’s enhanced job responsibilities, the AHA continued to pay him the salary of a maintenance mechanic II. On various occasions over the years of his tenure, Fernandes complained to his supervisor, Mark Johnson, and to Zambarano that he was misclassified and that, based on his duties, he properly should be classified as a maintenance mechanic I with the commensurate wage rate. His complaints were unsuccessful. Finally, on April 28, 2009, Fernandes filed a “Non-Payment of Wage and Workplace Complaint Form” with the Attorney General’s office. He alleged that, based on his job responsibilities, he had been misclassified as a maintenance mechanic II and was owed wages commensurate with the position of maintenance mechanic I. Fernandes informed Johnson that he had filed this complaint, and he subsequently requested and received from Dianne Precourt, AHA’s financial coordinator, copies of his job description and the prevailing wage rates. One month later, on May 29, 2009, Zambarano called Fernandes into a meeting and informed him that, based on the seniority of the personnel on the maintenance staff, Fernandes was being laid off due to budgetary constraints. He was given two weeks of severance pay. The present action ensued. 2. Jurisdiction over Fernandes’s claims. The AHA contends in this appeal that a housing authority employee can seek redress for an adverse employment action only through administrative proceedings under the civil service law, G. L. c. 31, §§ 41-45, and not through judicial proceedings in the Superior Court. In the AHA’s view, Fernandes’s complaint essentially alleged that he had been subjected to a decrease in compensation and then terminated without “just cause,” G. L. c. 31, §41, which are matters within the exclusive purview of the commission. Consequently, the AHA continues, the Superior Court lacked subject matter jurisdiction over Fernandes’s original action and, therefore, the judge should have granted AHA’s motion for judgment notwithstanding the verdict under the doctrine of primary jurisdiction. We disagree. The doctrine of primary jurisdiction arises in cases where a plaintiff, “in the absence of pending administrative proceedings, invokes the original jurisdiction of a court to decide the merits of a controversy” that includes an issue within the special competence of an agency. Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 220 (1979). See Everett v. 357 Corp., 453 Mass. 585, 609 (2009); Leahy v. Local 1526, Am. Fed’n of State, County & Mun. Employees, 399 Mass. 341, 345-346 & n.3 (1987). See generally A.J. Celia, Administrative Law and Practice § 1725 (1986 & Supp. 2014). “Where an agency has statutorily been granted exclusive authority over a particular issue, the doctrine of primary jurisdiction requires that a court refer the issue to the agency for adjudication in the first instance” (emphasis in original). Blauvelt v. AFSCME Council 93, Local 1703, 74 Mass. App. Ct. 794, 801 (2009), citing Everett v. 357 Corp., supra at 609-610. See Puorro v. Commonwealth, 59 Mass. App. Ct. 61, 64 (2003). The underlying rationale is that a court must be careful not to invade the province of an administrative agency before it has begun to exercise its authority in a particular case because judicial interference effectively would transfer to the courts a matter entrusted to the agency by the Legislature and would result in a substitution of the court’s judgment for that of the agency. See Wilczewski v. Commissioner of the Dep’t of Envtl. Quality Eng’g, 404 Mass. 787,792 (1989). The doctrine of primary jurisdiction has particular applicability when “an action raises a question of the validity of an agency practice ... or when the issue in litigation involves ‘technical questions of fact uniquely within the expertise and experience of an agency’ ” (citations omitted). Murphy v. Administrator of the Div. of Personnel Admin., supra at 221, quoting Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 304 (1976). See Columbia Chiropractic Group, Inc. v. Trust Ins. Co., 430 Mass. 60, 62 (1999). This court has noted that “[a] determination that primary jurisdiction over an issue in a civil case resides with an administrative agency requires that the case be stayed or dismissed to permit the administrative agency the opportunity to issue its determination.” Everett v. 357 Corp., 453 Mass. at 610 n.32. When an entire controversy is within the exclusive jurisdiction of an administralive agency, the doctrine of primary jurisdiction “ordinarily results in dismissal of judicial proceedings begun without prior resort to the agency.” J. & J. Enters., Inc. v. Martignetti, 369 Mass. 535, 540 (1976). However, “[wjhere at least one of the issues or claims is a matter for judicial determination or resolution, the court is not ousted of subject matter jurisdiction by the presence in the case of one or more issues which arguably are within the jurisdiction of an administrative or regulatory agency.” Austin Lakes Joint Venture v. Avon Utils., Inc., 648 N.E.2d 641, 646 & n.5 (Ind. 1995). See Everett v. 357 Corp., supra at 611 n.34. We proceed to consider the exclusivity of the commission’s jurisdiction with respect to Fernandes’s claims. The AHA argues that because G. L. c. 121B, § 29, explicitly provides civil service protections to tenured housing authority employees, the Legislature intended to confer jurisdiction solely on the commission to resolve complaints about purported adverse employment actions. We conclude that nothing in the civil service law suggests that Fernandes was required to bring his action before the commission where his claims alleged violations of the Wage Act, G. L. c. 149, §§ 148 and 148A. General Laws c. 121B, § 29, provides that “[n]o employee of any housing authority, except an employee occupying the position of executive director, who has held his office or position . . . within the authority for a total period of five years of uninterrupted service, shall be involuntarily separated therefrom except subject to and in accordance with the provisions of [G. L. c. 31, §§41-45,] to the same extent as if said office or position were classified under said chapter.” In turn, G. L. c. 31, § 41, states that a tenured employee shall not be discharged or laid off except for “just cause” and except in accordance with specific procedural requirements set forth in the first paragraph of § 41. Pursuant to G. L. c. 31, § 42, “[a]ny person who alleges that an appointing authority has failed to follow the requirements of [§ 41] in taking action which has affected his employment or compensation may file a complaint with the commission” (emphasis added). In accordance with G. L. c. 31, § 43, “[i]f a person aggrieved by a decision of an appointing authority made pursuant to [§ 41] shall . . . appeal in writing to the commission, he shall be given a hearing.” Thereafter, “[a]ny party aggrieved by a final order or decision of the commission . . . may institute proceedings for judicial review in the superior court.” G. L. c. 31, § 44. Finally, a tenured employee who has incurred attorney’s fees in the defense of an unwarranted adverse employment action “shall be reimbursed for such expense,” subject to specified limitations. G. L. c. 31, § 45. In essence, G. L. c. 121B, § 29, affords housing authority employees, like Fernandes, the protections of the civil service system. “The fundamental purpose of the civil service system is to guard against political considerations, favoritism, and bias in governmental hiring and promotion.” Massachusetts Ass’n of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 259 (2001). It also is designed to “protect efficient public employees” from partisanship and arbitrary punishment. Murray v. Second Dist. Court of E. Middlesex, 389 Mass. 508, 514 (1983), quoting Debnam v. Belmont, 388 Mass. 632, 635 (1983). See Dedham v. Labor Relations Comm’n, 365 Mass. 392, 396-397 (1974). The civil service system accomplishes its purpose by mandating that an adverse employment action be taken only for “just cause,” and by imposing on an appointing authority the obligation to comply with procedural requirements that are intended to protect the rights of a tenured employee. “If the commission finds that the appointing authority has failed to follow [the] requirements [of G. L. c. 31, § 41,] and that the rights of [any] person [filing a complaint] have been prejudiced thereby, the commission shall order the appointing authority to restore said person to his employment immediately without loss of compensation or other rights.” G. L. c. 31, § 42. The aforementioned language of G. L. c. 121B, § 29, and the provisions of G. L. c. 31, §§ 41-45, clearly are meant to protect tenured employees’ rights, but nothing therein dictates that the only avenue by which a housing authority employee who claims that he has been paid inadequate wages and involuntarily separated from his employment can seek redress is through administrative proceedings before the commission. To the contrary, the language in G. L. c. 31, § 42, stating that an aggrieved employee “may” file a complaint with the commission strongly suggests that the Legislature has not granted exclusive authority over all challenged employment actions to the commission. See Salem v. Massachusetts Comm’n Against Discrimination, 404 Mass. 170, 172-174 (1989) (Massachusetts Commission Against Discrimination and Civil Service Commission simultaneously resolved separate complaints filed by individual alleging failure to hire based on race); Dedham v. Labor Relations Comm’n, 365 Mass. at 400-404 (Civil Service Commission did not have exclusive jurisdiction over suspension of employee where claim of prohibited labor practice also could be brought before Labor Relations Commission). In circumstances where, as here, an employee’s claims focus not on an employer’s failure to satisfy the requirements of G. L. c. 31, § 41, but, rather, on the employer’s violation of an entirely different and separate statutory mandate, the employee is not required to proceed before the commission, but may commence a civil action. Of critical significance in this case is the nature of Fernandes’s claims. The AHA characterizes those claims within the framework of the civil service law, contending that determinations whether Fernandes was subjected to a retaliatory layoff or a “lowering] in rank or compensation,” G. L. c. 31, § 41, involve a “just cause” analysis. However, contrary to the AHA’s view of Fernandes’s complaint, the substance of his interrelated claims pertained to alleged violations of the Wage Act. More specifically, Fernandes asserted that the AHA intentionally misclassified his position and thereby failed to pay him the wages to which he was entitled, see G. L. c. 149, § 148, and that the AHA then terminated his employment in retaliation for his filing of a nonpayment of wage complaint with the Attorney General’s office, see G. L. c. 149, § 148A. Because the central thrust of Fernandes’s action was the AHA’s purported violations of the Wage Act, and not its alleged failure to act with “just cause,” Fernandes elected to seek redress for the harm he sustained by filing an action in the Superior Court, rather than by commencing administrative proceedings before the commission. Nothing in the civil service law precluded him from doing so. See generally Boston Police Patrolmen’s Ass’n v. Boston, 435 Mass. 718, 719-720 (2002) (we interpret statutory language according to intent of Legislature ascertained from its words considered in context of statute’s purpose). Similarly, nothing in the Wage Act excludes a housing authority employee from its protections or requires that such employee pursue relief from alleged wrongful conduct under the civil service system. “The purpose of the Wage Act is ‘to prevent the unreasonable detention of wages.’ ” Melia v. Zenhire, Inc., 462 Mass. 164, 170 (2012), quoting Boston Police Patrolmen’s Ass’n v. Boston, 435 Mass. at 720. See Lipsitt v. Plaud, 466 Mass. 240, 245 (2013). It was designed, among other purposes, “to protect wage earners from the long-term detention of wages by unscrupulous employers.” Melia v. Zenhire, Inc., supra, quoting Cumpata v. Blue Cross Blue Shield of Mass., Inc., 113 F. Supp. 2d 164, 167 (D. Mass. 2000). 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, like Fernandes, who complain about violations of the statute. See Smith v. Winter Place LLC, 447 Mass. 363, 367-368 (2006); Fraelick v. PerkettPR, Inc., 83 Mass. App. Ct. 698, 704 (2013). When the Wage Act was first enacted in