Boston Police Department v. Jones

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
19-P-900 Appeals Court
BOSTON POLICE DEPARTMENT vs. RONNIE C. JONES, & others.1
No. 19-P-900.
Suffolk. May 12, 2020. - November 10, 2020.
Present: Vuono, Milkey, & Desmond, JJ.
Police, Compensation. Civil Service, Police, Reinstatement of
personnel. Labor, Police, Contempt, Damages, Overtime
compensation. Public Employment, Police, Reinstatement of
personnel. Damages, Back pay, Interest, Mitigation.
Interest. Judgment, Interest. Municipal Corporations,
Police, Governmental immunity. Practice, Civil, Contempt,
Declaratory proceeding.
Civil action commenced in the Superior Court Department on
April 3, 2013.
Following review by this court, 90 Mass. App. Ct. 462
(2016), a complaint for contempt, filed on June 8, 2018, was
heard by Robert N. Tochka, J.
Alan H. Shapiro for Ronnie C. Jones & others.
Helen G. Litsas for Boston Police Department.
1 Richard Beckers, Shawn Harris, Jacqueline McGowan, Walter
Washington, George Downing, and the Civil Service Commission.
2
VUONO, J. This case is before us for the second time. It
began nearly two decades ago when ten Boston police officers
were discharged from the Boston police department (department)
after samples of their hair tested positive for cocaine.2 The
officers appealed from the termination of their employment to
the Civil Service Commission (commission). In 2013, the
commission upheld the discharges of four of the officers and
determined that the remaining six officers, Ronnie C. Jones,
Richard Beckers, Shawn Harris, Jacqueline McGowan, Walter
Washington, and George Downing, the plaintiffs in this contempt
case (officers), were entitled to reinstatement without loss of
compensation or benefits. The commission's decision was
affirmed with slight modifications by a judge of the Superior
Court in an order dated October 6, 2014.3 We affirmed that
judgment in a decision released on October 7, 2016. See
Thompson v. Civil Serv. Comm'n, 90 Mass. App. Ct. 462 (2016).4
Thereafter, a second round of litigation ensued.
2 The officers were discharged between 2001 and 2007.
3 The judge ordered that each of the six officers receive
back pay retroactive to the date of his or her discharge and not
to the date of the first hearing before the commission as the
commission had ordered.
4 A full description of the procedural history and factual
background relating to the discharges and the commission's
decision is set forth in our prior decision and need not be
repeated here.
3
Despite extensive negotiations, the parties failed to agree
on the appropriate remedy. Ultimately, the officers brought an
action for civil contempt, see Mass. R. Civ. P. 65.3, as
appearing in 386 Mass. 1244 (1982). As we discuss in more
detail later, the parties identified several legal issues in
dispute regarding the calculation of back pay and benefits, and
they asked a judge of the Superior Court to resolve those issues
based on stipulated facts. In a detailed memorandum of
decision, the judge addressed each issue. A judgment in
accordance with that memorandum entered. Not content with the
judge's rulings, and still not able to reach an agreement, both
sides appealed from that judgment.5
5 This case comes to us in an unusual posture. Although the
plaintiffs filed a complaint for civil contempt, ultimately,
they did not request that the department be held in contempt.
Instead, the parties subsequently asked the judge to resolve
certain questions on which they could not agree. To the extent
that the department, by agreement with the officers, asked the
judge to remove uncertainty and clarify its legal duties under
the prior judgment, this action resembles an action for a
declaratory judgment. Passing over the propriety of the manner
in which the parties proceeded, the issues have been fully
briefed and the logical choice at this point is to treat the
judge's decision as a declaration of the parties' rights and
duties. As a result, and because the judge's decision is based
solely on documentary evidence and the construction of
applicable statutes, our review is de novo. See Erickson v.
Clancy Realty Trust, 88 Mass. App. Ct. 809, 810 (2016) ("we
review [the trial judge's] decision as to questions of law, and
questions of fact based entirely on documents, de novo"). See
also Bank of N.Y. Mellon v. Morin, 96 Mass. App. Ct. 503, 507
(2019).
4
Background. We recite only those facts necessary to
provide context for our discussion of the issues. Following our
decision in Thompson, 90 Mass. App. Ct. 462, Officers Harris,
Downing, and Washington were reinstated. These three officers
were returned to duty and restored on the active payroll on
September 11, 2017. They returned to full duty in April 2018,
after they completed the required training. Officer Jones chose
to retire, and Officers McGowan and Beckers chose not to return
to the department and, at the time of this appeal, were seeking
to retire. On February 16, 2018, the department made partial
payments consisting of base pay, holiday pay, shift
differential, and educational pay to Officers Harris, Downing,
Washington, and Jones. The payments included certain
contractual buy backs for unused vacation, personal days, and
sick leave, but the department did not include any payments for
estimated amounts of overtime and detail pay that the officers
presumably would have earned during the period when they were
unlawfully separated from their employment. In addition, the
department deducted wages earned by these officers from their
interim employment during the back pay period, including wages
earned from second and third jobs and overtime. The department
also excluded any compensation for periods where these officers
5
were not employed on the ground that they had failed to mitigate
their damages.6
The department treated Officers Beckers and McGowan
differently. It is undisputed that these two officers did not
earn any income following the termination of their employment.
Several years after he was discharged, in August 2009, Officer
Beckers moved to Honduras where he owns and operates a bed and
breakfast establishment. He has not made any profit. Since
Officer McGowan's discharge, she has provided full-time care for
her mother, with whom she lives. The department took the
position that Officers Beckers and McGowan were not entitled to
any back pay because they did not mitigate their damages by
obtaining interim employment.
As previously noted, after the officers filed a complaint
for civil contempt, the parties agreed to submit a joint
stipulation delineating the issues that required resolution and
a joint stipulation of facts. The department also submitted a
report prepared by Dr. Christopher Erath, an economist retained
by the department to calculate each officer's economic losses as
a result of his or her wrongful discharge. Following a
nonevidentiary hearing, the judge ruled as follows:
6 By agreement, the department withheld amounts due to the
State Board of Retirement (board) from the payments made to
Officers Harris, Downing, Washington, and Jones, and remitted
those amounts directly to the board.
6
"[(1) All six officers] are entitled to back pay for all
periods since their Boston Police Department termination
. . . . (2) [The department] is not entitled to offset
from any back pay awarded to the six officers, any overtime
earnings and wages they earned from second and/or third
jobs after [the department] terminated them. (3) The six
officers' back pay award should not include pay they
believe they would have received from overtime pay [or]
details. (4) The six officers are entitled to prejudgment
interest on back wages from the date they were each
terminated. The six officers are not entitled to
postjudgment interest. (5) The six officers are not
entitled to reimbursement from [the department] for the
additional tax burden created after receiving large lump
sum payments."
The judge did not calculate the back pay awards and interest.
Discussion. I. The officers' appeal. The officers
challenge three aspects of the judge's decision. First, they
claim that their back pay awards should include compensation for
estimated overtime and detail pay. Second, they assert that
they are entitled to postjudgment interest. And third, they
argue that they should receive additional compensation to
relieve them of the tax burden caused by receiving large lump
sums in back pay. We address each issue in turn.
A. Overtime and detail pay. General Laws c. 31, § 43,
provides that when the commission or a reviewing court orders
the reinstatement of a civil service employee who has been
discharged without just cause, "the person concerned shall be
returned to his position without loss of compensation or other
rights." In prior decisions, we have held that the quoted
phrase does not impose an obligation on the government employer
7
to pay more than the employee's salary or base pay as fixed by
statute or ordinance. See White v. Boston, 57 Mass. App. Ct.
356, 360 (2003); Selectmen of Framingham v. Municipal Court of
Boston, 11 Mass. App. Ct. 659, 660-661 (1981) (interpreting
G. L. c. 31, § 44, now appearing as G. L. c. 31, § 43). In
Selectmen of Framingham, supra, we held that a police officer
who was unlawfully separated from his employment was not
entitled to recover pay for special details he could have worked
during the period of separation. We reasoned that because the
need for extra services was likely to be uncertain, compensation
for such pay could not be calculated without speculation. Over
twenty years after our decision in Selectmen of Framingham, we
decided White. In that case, we relied on our decision in
Selectmen of Framingham to conclude that the plaintiff, a police
officer who secured reinstatement nearly two years after he was
unlawfully barred from returning to his employment with the
police department, was entitled to compensation consisting of
"straight salary" and not "salary plus assumed overtime and
detail pay." White, supra at 357. We specifically considered
the question whether overtime and detail pay should be regarded
as components of a "make whole" remedy, and we concluded that a
government employee may recover base salary but not estimated
amounts of overtime and detail pay. See id. at 360. Here,
relying on our decisions in Selectmen of Framingham and White,
8
the judge concluded that the officers were not entitled to
recover overtime and detail pay.
At the core of the officers' claim that their back pay
award should include estimated amounts for overtime and paid
details is the meaning of the phrase "without loss of
compensation or benefits." As the officers acknowledge, we have
consistently interpreted that phrase as excluding earnings from
potential overtime or paid details. See White, 57 Mass. App.
Ct. at 360; Selectmen of Framingham, 11 Mass. App. Ct. at 660-
661. The Legislature has amended G. L. c. 31 several times
without attempting to alter our interpretation. "It is a well-
settled rule of statutory interpretation that, when a statute
after having been construed by the courts is re-enacted without
material change[,] . . . the Legislature . . . is presumed to
have adopted the judicial construction put upon it." Hertrais
v. Moore, 325 Mass. 57, 61 (1949), quoting Nichols v. Vaughan,
217 Mass. 548, 551 (1914). See Suliveres v. Commonwealth, 449
Mass. 112, 116 (2007). Thus, our interpretation "is supported
by legislative approval," Nichols, supra, and, as such, absent
an agreement between the parties, we conclude the officers may
not recover estimated amounts for overtime and paid details.
In reaching our conclusion, we have not ignored the
officers' argument that the circumstances presented here are
different than those presented in White. In that case, the
9
period of time for which the officer was entitled to
compensation was two years, see White, 57 Mass. App. Ct. at 356,
whereas the time period for which the officers are owed
compensation here is significantly longer.7 Additionally, we
have considered the fact that sophisticated, nonspeculative
methods of calculating overtime and detail opportunities exist.8
Nonetheless, our precedents, coupled with the subsequent
legislative history, require us to apply the bright-line rule
that estimated overtime and detail pay is to be excluded from a
back pay award.9 See White, supra at 360; Selectmen of
Framingham, 11 Mass. App. Ct. at 660-661.
7 The officers allege that Beckers is entitled to back
compensation for a period of over fourteen years; Downing, over
thirteen years; Harris, over fourteen years; Jones, fifteen
years; McGowan, over fourteen years; and Washington, over
fourteen years.
8 For example, the National Labor Relations Board suggests a
number of methods that can be used to calculate the amount of
overtime that a wrongfully discharged employee would have worked
during the period of separation. See Nat'l Labor Relations Bd.,
Case Handling Manual, Part 3: Compliance Proceedings, § 10540
(Aug. 2020),
https://www.nlrb.gov/sites/default/files/attachments/pages/node-
174/compliance-manual-august-2020.pdf [https://perma.cc/5SW9-
SEQK]. These methods include, depending on the circumstances,
determining the average earnings of the discharged employee
prior to termination; the earnings of comparable employees; or,
where the back pay period is brief, the earnings of a
replacement employee who filled the position vacated by the
wrongfully discharged employee. Id.
9 Relying on Connolly v. Suffolk County Sheriff's Dep't, 62
Mass. App. Ct. 187 (2004), the officers also argue that the
availability of overtime and paid detail is a factual inquiry
10
B. Postjudgment interest. The judge determined that the
officers are not entitled to recover postjudgment interest on
their awards of back pay on the ground of sovereign immunity.
We agree.
"Municipal liability implicates the doctrine of sovereign
immunity, which protects the public treasury from unanticipated
money judgments." Todino v. Wellfleet, 448 Mass. 234, 238
(2007). "[E]ntities entitled to sovereign immunity are not
liable for interest under G. L. c. 235, § 8, absent an
unequivocal statutory waiver." Sheriff of Suffolk County v.
Jail Officers & Employees of Suffolk County, 465 Mass. 584, 598
(2013). As the judge correctly observed, "[t]he general rule is
that 'the Commonwealth [and a municipality] . . . is not liable
for postjudgment interest in the absence of a clear statutory
waiver of sovereign immunity in that regard,' Sheriff of Suffolk
County[,] [supra at] 597, quoting Chapman v. University of Mass.
Med. Ctr., 423 Mass. 584, 586 (1996)." See Brown v. Office of
and that they are able to prove their entitlement to these
categories of compensation without speculation. In Connolly,
supra at 191, the plaintiff correction officers alleged that the
defendant discriminated against them by denying them the
opportunity to work overtime. The only category of compensation
at issue in Connolly, based on its specific facts, was overtime
pay. We ultimately concluded that "[t]he plaintiffs simply
could not prove that they would likely have worked any overtime
shifts." Id. at 198-199. Whether overtime required by the
municipality and not associated with detail work should fall
within the definition of the compensation has not been addressed
by the parties or with specificity in our previous cases.
11
the Comm'r of Probation, 475 Mass. 675, 677 (2016) ("G. L.
c. 235, § 8, . . . does not apply to claims against the
Commonwealth or its subdivisions. . . . Thus, public employers
are not liable for postjudgment interest unless some other
statute clearly waives sovereign immunity with respect to such
interest").
As the officers concede, there is no express statutory
waiver of sovereign immunity from liability for postjudgment
interest. The postjudgment interest statute, G. L. c. 235, § 8,
does not affect such a waiver.10 However, the absence of an
explicit wavier does not end the inquiry. "If sovereign
immunity is not waived expressly by statute, we consider whether
governmental liability is necessary to effectuate the
legislative purpose" (citation omitted). Todino, 448 Mass. at
238. Thus, the question presented is whether sovereign immunity
is waived by necessary implication. See id. at 239.
"Sovereign immunity advances important public policies, and
the 'rules of construction governing statutory waivers of
sovereign immunity accordingly are stringent'" (citation
omitted). Brown, 475 Mass. at 679. "Sovereign immunity from
liability for postjudgment interest by necessary implication
General Laws c. 235, § 8, provides: "interest shall be
10
computed upon the amount of [an] award . . . from the time when
made to the time the judgment is entered . . . at the same rate
per annum as provided for prejudgment interest."
12
requires 'uncommonly forceful language' indicating a legislative
intent that the Commonwealth should compensate plaintiffs
without any loss whatsoever, including loss of the time value of
the money awarded." Id., quoting Todino, 448 Mass. at 235.
General Laws c. 31, § 43, provides that if the commission
reverses the action of the appointing authority, "the person
concerned shall be returned to his position without loss of
compensation or other rights." This language is not
sufficiently "forceful" for us to conclude that the Legislature
clearly intended recovery for postjudgment interest. Brown,
supra, quoting Todino, supra.
Todino, on which the officers primarily rely, is not to the
contrary. In that case, the Supreme Judicial Court interpreted
G. L. c. 41, § 111F, which allows police officers to recover
wages of which they are deprived during periods of incapacity
through no fault of their own. The court held that the statute
waives sovereign immunity from liability for postjudgment
interest by necessary implication, because it provides that such
officers be compensated "without loss of pay for the period of
such incapacity" and that "[a]ll amounts payable under this
section shall be paid at the same times and in the same manner
as, and for all purposes shall be deemed to be, the regular
compensation." See Todino, 448 Mass. at 237-240. Given the
clear legislative intent to provide complete relief, the Supreme
13
Judicial Court concluded that prejudgment interest was deemed
"essential to vindicate fully an employee's express right to
continued, timely compensation." Id. at 238. But no similar
language "indicating such a clear legislative intent to
compensate specifically for the time value of money owed," is
present in G. L. c. 31, § 43. Brown, 475 Mass. at 681.
Accordingly, the judge correctly concluded that sovereign
immunity bars the officers from recovering postjudgment interest
on the awards at issue. See id.
C. Tax burden. The officers claim they are entitled to an
additional monetary award to offset the negative tax
consequences of a lump-sum back pay award.11 Noting the absence
of any authority in Massachusetts for so-called "tax enhancement
damages," the judge concluded that the officers were not
entitled to receive compensation for any additional tax
liability.
While there are no reported decisions from the courts of
the Commonwealth addressing this issue, the question is resolved
by applying the same analysis that we used to reach the
11This type of tax offset is referred to by various names,
including "tax enhancement remedy" and "tax enhancement
damages," Arneson v. Callahan, 128 F.3d 1243, 1247 (8th Cir.
1997), "tax-effect damages," Eshelman v. Agere Sys., Inc., 554
F.3d 426, 441-443 (3d Cir. 2009), and "tax-component award,"
Vega v. Chicago Park Dist., 954 F.3d 996, 1009-1010 (7th Cir.
2020).
14
conclusion that sovereign immunity bars recovery for
postjudgment interest. In sum, in the absence of an express
waiver or waiver by necessary implication, the Commonwealth and
its instrumentalities, here the department, are immune from
liability for tax enhancement damages on an award of back pay.
See Brown, 475 Mass. at 679.
II. Department's cross appeal. The department likewise
challenges three aspects of the judge's decision. First, the
department argues that the officers are not entitled to
prejudgment interest. Second, the department claims that it met
its evidentiary burden on mitigation of damages and, therefore,
Officers Harris, Downing, Jones, and Washington are not entitled
to back pay for the periods in which they did not work and that
Officers McGowan and Beckers are not entitled to any back pay.
Lastly, the department claims that the officers' back pay award
should be offset by any earnings and wages that the officers
earned from second and third jobs and overtime following the
termination of their employment. We address each issue in turn.
A. Prejudgment interest. The judge concluded that the
officers are entitled to prejudgment interest on the ground that
G. L. c. 231, § 6C, which provides for an award of interest in
all actions based on contractual obligations, waives sovereign
15
immunity.12 In reaching his conclusion, the judge principally
relied on our decision in Thibodeau v. Seekonk, 52 Mass. App.
Ct. 69 (2001), and our interpretation in that case of G. L.
c. 231, § 6C. We agree that the question is controlled by
Thibodeau and that the department is liable for prejudgment
interest.
In Thibodeau, supra at 70, the plaintiff firefighter had
been demoted from his position as captain to that of lieutenant.
After successfully challenging that demotion, he sought
prejudgment interest on an award of back wages. See id. We
concluded that, pursuant to G. L. c. 231, § 6C, interest on a
back pay award due to the firefighter should have been
calculated from the date of the firefighter's demotion instead
of from the date he filed his action in the Superior Court. See
id. at 73-74. Although Thibodeau involved a slightly different
question, by analogy it stands for the proposition that where,
as here, a contractual relationship exists between the employee
and the government employer, § 6C waives sovereign immunity with
12 General Laws c. 231, § 6C, states:
"In all actions based on contractual obligations, upon a
verdict, finding or order for judgment for pecuniary
damages, interest shall be added by the clerk of the court
to the amount of damages, at the contract rate, if
established, or at the rate of twelve per cent per annum
from the date of the breach or demand."
16
regard to prejudgment interest.13 Moreover, both in Selectmen of
Framingham, 11 Mass. App. Ct. at 662, and in White, 57 Mass.
App. Ct. at 360, we affirmed awards of interest, albeit without
discussion. We also agree with the judge's observation that the
Legislature, presumably, is aware of our prior decisions
awarding interest in similar circumstances, and it has not
enacted legislation to clarify or overrule these decisions. See
Hertrais, 325 Mass. at 61.
B. Mitigation. The department asserts that the judge
erred in concluding that it failed to meet its burden to show
that the officers did not mitigate their damages. We disagree.
It is well established that a public employee who is
wrongfully discharged has a duty to mitigate damages by
"dispos[ing] of his time in a reasonable way, so as to obtain as
large compensation as possible, and to use honest, earnest and
intelligent efforts to this end." Sheriff of Suffolk County,
465 Mass. at 589, quoting Maynard v. Royal Worcester Corset Co.,
200 Mass. 1, 6 (1908). The employer, however, bears the burden
13We are not persuaded by the department's argument that
the officers have no contractual relationship with the
commission and that therefore G. L. c. 231, § 6C, does not
apply. The Supreme Judicial Court has held that interest is
available in actions based on "obligations that derive from an
agreement and those imposed by statute," Lexington v. Bedford,
378 Mass. 562, 576 (1979), and we have held that interest under
§ 6C on a civil service employee's back pay award is
appropriate, Selectmen of Framingham, 11 Mass. App. Ct. at 662.
17
of proving that the employee failed to mitigate his damages.
See Sheriff of Suffolk County, supra at 592. In order to meet
this burden, the employer must show the following:
"(a) one or more discoverable opportunities for comparable
employment were available in a location as convenient as,
or more convenient than, the place of former employment,
(b) the improperly discharged employee unreasonably made no
attempt to apply for any such job, and (c) it was
reasonably likely that the former employee would obtain one
of those comparable jobs" (citation omitted).
Id. The duty to find "comparable employment" does not require
the employee to "go into another line of work [or] accept a
demotion." Id. at 593, quoting Ford Motor Co. v. Equal
Employment Opportunity Comm'n, 458 U.S. 219, 231 (1982). The
employer must therefore show the availability of substantially
similar employment that "offer[ed] similar long-term benefits
and opportunities for promotion as compared to the original
position." Sheriff of Suffolk County, supra at 593, citing
Greenway v. Buffalo Hilton Hotel, 951 F. Supp. 1039, 1061
(W.D.N.Y. 1997), aff'd as modified, 143 F.3d 47 (2d Cir. 1998)
("In order for the work to be comparable or substantially
similar, the new position must afford a plaintiff virtually
identical promotional opportunities, compensation, job
responsibilities, working condition, and status as the former
position").
It is undisputed that four of the officers obtained interim
employment during some portions of the time period in question.
18
Officer Downing obtained employment as a security guard.
Officer Washington worked as a delivery driver with United
Parcel Service (UPS). Officer Jones earned income by working
for a tree-trimming service, and Officer Harris obtained a
position with financial services provider Fidelity from which he
resigned after two years. In addition, there was evidence that
two of the four officers who were discharged and not reinstated,
Officers Hogan and Wade, obtained employment as a correction
officer and as an officer with the United States Transportation
Security Administration (TSA), respectively. The judge
considered this evidence and concluded that none of these jobs
offered the same level of stability, benefits, or opportunities
for promotion as employment as a Boston police officer provided.
The judge wrote:
"Notably, the position of Boston police officer offers
substantial opportunities for promotion and numerous
benefits, such as . . . opportunities for further job
training. As to the issue of job stability, this
litigation illustrates the difficulties associated with
terminating Boston police officers thereby demonstrating
that the position is extremely stable."
In addition, the judge observed that even if comparable
employment was available to the officers on the date of their
respective terminations, the department failed to show that it
19
was reasonably likely that the officers could obtain such
employment given the reason for their discharge.14
We agree with the judge's reasoning and his conclusion. It
matters not, as the department argues, that some of the officers
were not employed for some periods of time or that Officers
Beckers and McGowan did not obtain employment as a TSA officer,
a UPS driver, a correction officer, or something similar. Even
assuming that the officers did not use reasonable efforts at all
times to find suitable employment "so as to obtain as large
compensation as possible," Sheriff of Suffolk County, 465 Mass.
at 589, the department would not prevail because it has not
shown the availability of comparable employment and the
likelihood that the officers could have obtained it, see id. at
592.
The department relies on Quint v. A.E. Staley Mfg. Co., 172
F.3d 1, 16 (1st Cir. 1999), where the United States Court of
Appeals for the First Circuit adopted a rule that "relieve[s]
the defendant-employer of the burden to prove the availability
of substantially equivalent jobs . . . once it has been shown
that the former employee made no effort to secure suitable
The judge observed: "Given that [the department]
14
terminated each of these four officers for essentially using
cocaine while they were employed as Boston police officers, it
is highly unlikely that the officers could obtain a comparable
position even if [the department] had produced evidence to
suggest that such opportunities were available."
20
employment" and urges us to adopt a similar rule. However, the
Supreme Judicial Court expressly declined to adopt this rule in
Sheriff of Suffolk County, 465 Mass. at 594. Instead, the court
agreed with "the Sixth Circuit that 'basic principles of equity
and fairness mandate that the burden of proof must remain on the
employer because the employer's illegal discharge of the
employee precipitated the search for another job.'" Id. at 594-
595, quoting National Labor Relations Bd. v. Westin Hotel, 758
F.2d 1126, 1130 (6th Cir. 1985). Because the department has not
met its burden on mitigation, the officers are entitled to an
award of back pay that covers the entire period of their
unlawful separation from the department.15
C. Income earned from overtime and second and third jobs.
The department asked the judge to "offset from any back pay
awarded to the six officers[] any overtime earnings and wages
that they earned from second and/or third jobs." As we have
noted, the officers agreed that unemployment compensation and
"straight-time earnings from primary interim jobs" were properly
deducted from their back pay award, but they claimed that
earnings, including overtime earnings, from second and third
jobs should not be subtracted. The judge agreed with the
15The officers agreed that unemployment compensation and
"straight-time earnings from primary interim jobs" were properly
deducted from their back pay award.
21
officers, reasoning that "[a]s a matter of fairness, such
offsets are inappropriate." He further explained: "The
officers who worked overtime and/or second and third jobs chose
to sacrifice their own time outside of their regular working
hours to obtain these additional earnings" and "[a]llowing [the
department] to offset [these additional earnings] from any back
pay . . . would result in additional [losses] to the officers."
The department argues that because a back pay award should not
make a public employee "more than whole," as a matter of law, it
is entitled to deduct all of the officers' earnings acquired
during the interim period regardless of the source of those
earnings.
While there are no reported decisions from courts in the
Commonwealth addressing this precise issue, the officers urge us
to adopt the reasoning of the judge and conclude that because
they are not entitled to receive compensation for the estimated
overtime and paid detail they would have worked, the department
is not entitled to subtract their earnings, including overtime
earnings, from second and third jobs. We agree. Fairness is a
factor that should not be overlooked in any circumstances and no
less so here. Consequently, we conclude that the so-called
"extra" amounts earned by the officers, that is, the amounts
earned in addition to their base salary from their primary
22
interim employment, should not be subtracted from their back pay
awards.16
Conclusion. We affirm the judgment and remand the case to
the Superior Court for a determination of the back pay awards
and interest consistent with this opinion.
So ordered.
16The officers also point to cases decided by the National
Labor Relations Board and the National Labor Relations Board
Casehandling Manual for Compliance Proceedings (Manual),
https://www.nlrb.gov/sites/default/files/attachments/pages/node-
174/chm30.pdf [https://perma.cc/P5KC-RBKF]. See generally
29 U.S.C. §§ 151 et seq. With respect to overtime earnings, the
Manual provides that "interim earnings based on hours in excess
of those available (or worked) at [the] gross employer [are] not
deductible." Manual § 10554.3. As regards earnings from second
or third jobs, the Manual states in relevant part: "When a
discriminatee holds two separate jobs simultaneously during the
backpay period, income from the second job is generally not
deductible against gross backpay." Id. at § 10554.4.