Plourde v. Police Dep't of Lawrence

• Decision Date: 09 April 2014
• Docket Number: No. 13–P–650.,13–P–650.
• Citation: 85 Mass.App.Ct. 178,7 N.E.3d 484
• Court: Appeals Court of Massachusetts
• Parties: Ronald PLOURDE v. POLICE DEPARTMENT OF LAWRENCE.

85 Mass.App.Ct. 178

7 N.E.3d 484

Ronald PLOURDE

v.POLICE DEPARTMENT OF LAWRENCE.

No. 13–P–650.

Appeals Court of Massachusetts, Essex.

Submitted Jan. 7, 2014.

Decided April 9, 2014.

Corinne Hood Greene, Charlestown, for the plaintiff.

Charles D. Boddy, Jr., City Attorney, for the defendant.

Harold Lichten, for Professional Firefighters of Massachusetts, amicus curiae, submitted a brief.

Present: KATZMANN, FECTEAU, & MILKEY, JJ.

FECTEAU, J.

The plaintiff, Ronald Plourde, a former captain of the Lawrence police department (department or defendant), appeals from the denial of his motion for summary judgment and the allowance of the department's motion for summary judgment, by a judge in the Superior Court. The plaintiff had sued the city of Lawrence for the value of compensatory time that he had earned and accrued prior to being injured on duty in 2006. He retired due to his disability in 2010 without ever having returned to active duty. In granting the defendant's motion for summary judgment, the motion judge dismissed the plaintiff's claims for breach of contract, breach of good faith and fair dealing, and a claim under G.L. c. 149, § 148, and G.L. c. 151 (collectively, Wage Act). Following the allowance of summary judgment in favor of the defendant, the plaintiff filed a motion for reconsideration, which the judge denied, confirming his previous ruling that the plaintiff's Wage Act claim was barred by sovereign immunity and the provisions of St. 1990, c. 41 (Lawrence Act), which established financial conditions for Lawrence. Because sovereign immunity is inapplicable to this case and because the Lawrence Act cannot be read to negate the defendant's obligations under the Wage Act, we reverse.

1. Background. The summary judgment records contain the following undisputed facts. The plaintiff was employed by the defendant as a police officer from 1985 through 2010. The plaintiff was promoted to captain in 2002 and remained in that position until he retired in 2010. As a captain, he was a party to a collective bargaining agreement (CBA) between Lawrence and the Lawrence Police Superior Officer's Association.

During the course of his employment, and pursuant to the terms of the CBA, the plaintiff was permitted and elected to work additional shifts. The additional shifts were separate and distinct from his salaried administrative role. The CBA referred to these additional shifts as “overtime” and defined them as “work performed over and above his ... regular tour of duty.” The defendant's policies and practices, governed by the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq. (2012), permit officers to elect compensatory time in lieu of wages for overtime hours. Throughout his employment, the plaintiff elected to take compensatory time for many of his overtime shifts.

In 2006, the plaintiff was injured in the workplace and was unable to work. He remained out of work on disability leave until his retirement, approved in June, 2010. At the time of his injury, he had accrued 261.5 hours of compensatory time.¹ At the time of his retirement, the plaintiff was paid accumulated sick leave under the parties' CBA (see note 9, infra ), but the defendant refused to pay the plaintiff his accrued compensatory time.

Consequently, in August, 2011, the plaintiff brought suit against the defendant for its failure to pay his wages, claiming a violation of the Wage Act, breach of contract, and breach of good faith and fair dealing. On September 26, 2013, the parties filed cross motions for summary judgment.The motion judge denied the plaintiff's motion for summary judgment, and granted the defendant's motion. The judge's decision states that the Wage Act claim was dismissed based on sovereign immunity, the breach of contract claim was dismissed based on the past practices doctrine, and the breach of good faith and fair dealing claim was dismissed based on the Lawrence Act. Subsequently, the plaintiff filed a motion for reconsideration, which the judge denied, affirming his previous ruling and finding that the plaintiff's Wage Act claim was barred by sovereign immunity, and by an expanded analysis of the Lawrence Act.^2,3 The plaintiff's notice of appeal timely followed this denial.⁴

2. Analysis. a. Sovereign immunity. First, the plaintiff claims the judge erred in dismissing his Wage Act claim based on the theory of sovereign immunity. We need not dwell on the question of sovereign immunity, the lead basis for the judge's decision, as it is well settled that municipalities are subject to the Wage Act, a matter of law which Lawrence does not contest. See Dixon v. Malden, 464 Mass. 446, 447, 984 N.E.2d 261 (2013) (holding Malden employee entitled to damages for Malden's violation of Wage Act). See also Treasurer of Worcester v. Department of Labor & Indus., 327 Mass. 237, 241–242, 98 N.E.2d 270 (1951) (requiring Worcester to comply with requirements set forth in Wage Act); Boston Police Patrolmen's Assn. v. Boston, 435 Mass. 718, 720, 761 N.E.2d 479 (2002) (Boston employees can bring claim for unpaid wages under Wage Act); Newton v. Commissioner of the Dept. of Youth Servs., 62 Mass.App.Ct. 343, 349, 816 N.E.2d 993 (2004) (holding State employees have right to timely payment of wages under Wage Act). Thus, the judge's ruling was a clear error of law.

b. The Lawrence Act. Second, the plaintiff claims the judge erred in dismissing his claims based on an alleged misinterpretation of the Lawrence Act. That act was meant to ensure the fiscal stability of Lawrence. To that end, the Lawrence Act sets forth a procedure requiring each of Lawrence's departments to work within its budgeted allocation and to provide notice to Lawrence if certain expenses exceed that allocation. The Lawrence Act creates five allotment periods for the fiscal year, with each period lasting either two or three months.⁵ The law states that if a department “has exhausted its time period allotment and any amounts unexpended in previous periods,” notice will be given to the mayor and the fiscal oversight board. St. 1990, c. 41, § 3. The mayor then has ten days to decide whether to waive the additional expenses. If the overspending is waived, the relevant department must reduce subsequent allotments. If the overspending is not waived, the relevant department has to immediately reduce personnel expenses. Lawrence and its employees, however, maintain the right to negotiate about the method of implementing the reduction subject to a valid collective bargaining agreement. Section 3 of the Lawrence Act also states that all collective bargaining agreements entered into after its enactment are subject to its terms.

The judge and the defendant focused on § 3 of the Lawrence Act:

“No personnel expenses earned or accrued within any department, board, commission, agency or other unit of city government shall be charged to or paid from any allotment of a subsequent period without the written approval of the mayor, except for subsequently determined retroactive compensation adjustments, or in the case of an emergency involving the health or safety of the people or their property.”

The judge determined that the above language created a “use it or lose it” policy where Lawrence employees had to obtain mayoral approval to carry over accrued compensatory time from a previous allotment period. Consequently, the judge determined that the plaintiff's Wage Act claim was barred by the Lawrence Act because he never received mayoral approval to carry over his compensatory time from previous allotment periods, and therefore his compensatory time was “lost.” Thus, the defendant argues that under the Lawrence Act, absent mayoral approval, “the plaintiff was entitled to nothing.” This interpretation is in error.

The Wage Act requires employers to pay each “employee the wages earned by him.” G.L. c. 149, § 148. That act states: “The word ‘wages' shall include any holiday or vacation payments due an employee under an oral or written agreement.” Id. “The word ‘earn’ is not statutorily defined, but its plain and ordinary meaning is ‘[t]o acquire by labor, service, or performance ... [w]here an employee has completed [what is] required of him.’ ” Awuah v. Coverall N. Am., Inc., 460 Mass. 484, 492, 952 N.E.2d 890 (2011), quoting Black's Law Dictionary 584 (9th ed. 2009). However, the defendant argues that because the Lawrence Act is incorporated into the parties' CBA, Lawrence is shielded from its obligations under the Wage Act. Such an interpretation is in direct conflict with the terms of the Wage Act, which expressly states, “No person shall by a special contract with an employee or by any other means exempt himself from this section or from section one hundred and fifty.” G.L. c. 149, § 148. Therefore, despite the defendant's arguments to the contrary,⁶ the Lawrence Act, as interpretedby the judge and the defendant, is clearly inconsistent with the Wage Act.

Nonetheless, the defendant argues the judge was correct in dismissing the plaintiff's claim because, even if the Lawrence Act and the Wage Act are inconsistent, the Lawrence Act supersedes the Wage Act. In support of this argument the defendant cites Pirrone v. Boston, 364 Mass. 403, 413, 305 N.E.2d 96 (1973), where the Supreme Judicial Court stated, “ ‘[O]ur well established principle of construction’ that, absent a clearly expressed legislative intent to the contrary, a Special Act ‘made in regard to a place, growing out of its peculiar wants, condition, and circumstances,’ must prevail over a conflicting general act.” However, in context, this principle is further qualified: “[A]bsent a clear legislative intent to the contrary the provisions of a special charter generally prevail over conflicting provisions of a subsequently enacted general law” (emphasis added). School Comm. of Boston v. Boston, 383 Mass. 693, 700, 421 N.E.2d 1187 (1981). See Dartmouth v. Greater New Bedford Regional Vocational Technical High Sch. Dist., ...