Sheriff of Cnty. v. Jail Officers

• Decision Date: 14 June 2013
• Docket Number: SJC–11229.
• Citation: 990 N.E.2d 1042,465 Mass. 584
• Parties: SHERIFF OF COUNTY v. JAIL OFFICERS AND EMPLOYEES OF COUNTY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

465 Mass. 584

990 N.E.2d 1042

SHERIFF OF COUNTY

v.JAIL OFFICERS AND EMPLOYEES OF COUNTY.¹

SJC–11229.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 4, 2013.

Decided June 14, 2013.

Timothy J. Casey, Assistant Attorney General, for the plaintiff.

John M. Becker for the defendant.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

CORDY, J.

This appeal arises from an action in the Superior Court to enforce an arbitrator's award of back pay to a jail officer employed and wrongfully discharged by the sheriff of Suffolk County (sheriff). The sheriff appeals from the judge's ruling that the jail officer, Joseph Upton, had no duty to mitigate his damages by seeking comparable employment. The Jail Officers and Employees of Suffolk County (union), on behalf of Upton, cross appeals from the judge's decision not to assess statutory postjudgment interest on the arbitrator's award. Although we conclude that Upton did have a duty to mitigate his damages, we affirm the judgment on the grounds that the sheriff waived this issue by failing to raise it earlier in the proceedings, and that, regardless, she failed to meet her burden of proof on the issue.² We also affirm the judge's decision not to assess postjudgment interest on sovereign immunity grounds.

1. Background. This appeal represents the putative final chapter in a case that, at the time of an earlier decision in 2008, already had a “long and tortuous procedural history.” Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 451 Mass. 698, 699, 888 N.E.2d 945 (2008)( Sheriff of Suffolk County I ). On December 29, 1999, Upton was dischargedfrom his position as a jail officer at the Nashua Street jail in Boston (jail) following an incident in which Upton allegedly “filed untimely and then false reports” concerning an assault of an inmate that he witnessed. Id. On Upton's behalf, the union grieved the termination pursuant to the applicable collective bargaining agreement, and ultimately sought an arbitrator's review. Id. Following two days of hearings in November and December, 2000, the arbitratorfound, inter alia, that Upton had filed “incomplete, misleading or false reports” concerning the assault, but ruled that although the sheriff had “just cause” to discipline Upton, Upton should not have been discharged. Id. The arbitrator ordered that Upton was to be suspended for six months without pay and then reinstated “with full back pay and benefits, less any outside earnings and/or unemployment compensation.” ³

The sheriff filed an appeal in the Superior Court pursuant to G.L. c. 150C, § 11, seeking to vacate the award on the ground that the order reinstating Upton exceeded the arbitrator's authority because it was contrary to “well-defined public policy.” Id. at 699–700, 888 N.E.2d 945. The Superior Court confirmed the award. Id. at 700, 888 N.E.2d 945. The sheriff appealed the confirmation to the Appeals Court, which also affirmed the judgment. Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 62 Mass.App.Ct. 915, 817 N.E.2d 336 (2004). We denied the sheriff's application for further appellate review without prejudice, remanding the case to the Appeals Court for reconsideration in light of our decision in Boston v. Boston Police Patrolmen's Ass'n, 443 Mass. 813, 824 N.E.2d 855 (2005), regarding public policy grounds for setting aside arbitration awards. Sheriff of Suffolk County I, supra at 700, 888 N.E.2d 945. On remand, the Appeals Court again affirmed the Superior Court judgment confirming the arbitrator's award, Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 68 Mass.App.Ct. 903, 860 N.E.2d 963 (2007). We then granted the sheriff's application for further appellate review. Sheriff of Suffolk County I, supra at 700, 888 N.E.2d 945. Although we determined that “the ambiguous record [did] not permit us to answer [the] question [whether public policy requires vacation of the award],” we concluded that “a remand of the case for clarification of the record [was] not possible, and that in the particular circumstances presented, a remand for a new arbitration proceeding would [have been] inappropriate.” Id. at 698–699, 888 N.E.2d 945. By the time of our decision, the arbitrator had died, and it would have been impractical to remand the matter for rehearing before a different arbitrator due to the “unavailability of several critical witnesses” almost nine years after Upton had been discharged. Id. at 702 n. 5, 703, 888 N.E.2d 945. Accordingly, because it was “obviously necessary to resolve [the] case,” we affirmed the judgment of the Superior Court confirming the arbitrator's award. Id. at 703, 888 N.E.2d 945. Following our affirmance in a decision released on June 23, 2008, judgment entered in the Superior Court on July 25, 2008, and Upton was reinstated and returned to work in August, 2008.

2. Dispute over back pay award. On his return to work, Upton executed a document under the pains and penalties of perjury declaring that his offset earnings in the nearly nine years since his discharge totaled $14,943. As of August, 2009, the sheriff had not paid Upton any back pay pursuant to the arbitrator's award. Consequently, on August 24, 2009, the union filed a complaint for contempt in the Superior Court asking that the sheriff be held in contempt for failing to pay back pay pursuant to the 2008 Superior Court judgment confirming the arbitrator's award. In the unique procedural circumstances of this case, the judge determined to hold an evidentiary hearing, not on the matter of contempt, but rather on the proper calculation of back pay (minus offsets) that Upton was entitled to receive under the terms of the arbitrator's award, which had continued to accrue during the approximately eight-year period between the time of the award and the date on which Upton was reinstated. Following the hearing, the parties submitted proposed findings of fact and rulings of law. The judge issued a decision on April 12, 2011, ruling that Upton had no duty to mitigate his damages or that, alternatively, the sheriff had failed to meet her burden of proof on the issue of mitigation, such that Upton was owed the full amount of back pay due less only actual earnings and unemployment compensation. The judge further ruled that Upton was not entitled to postjudgment interest on the award.

In addition to recounting the procedural history detailed above, the judge made the following findings of fact. Upton did not work regularly following his discharge from the jail. He did not actively look for a new job due to his belief that he would be reinstated when he continually prevailed at every stage of the litigation. During his period of unemployment, Upton received significant amounts of money from his parents in order to pay bills and take care of his children. In 2000, Upton received $12,930 in unemployment compensation. In January, 2004, Upton represented on an automobile loan application that he was employed at a restaurant in Charlestown where he earned $2,000 per month and had worked for eighteen years. However, in reality, Upton had not worked at that restaurant since before 1991. Upton had trained as a carpenter, and in 2006 and 2007, he worked as a self-employed carpenter earning $5,000 per year. In January, 2007, Upton applied for another automobile loan, stating on the application that he had worked continuously as a carpenter since 2000 and earned $2,400 per month. The judge found that Upton had lied on both loan applications in order to ensure that he received the loans, and that his only earnings in 2006 and 2007 were the $10,000 he made as a carpenter. In January, 2008, Upton worked for two weeks as a bouncer, earning $1,280. He was injured on the job and later received $10,500 in workers' compensation.

From those findings, the judge identified six items of offset totaling $36,723,⁴ which, when subtracted from the gross back pay due ($431,447.67), meant Upton was owed $394,724.67 in back pay.⁵ The judge concluded that Upton “reasonably believed that he would be returning to work after the [arbitrator's] award was issued [and,] [t]herefore, [he had] no duty to mitigate his damages, and must subtract only his actual interim earnings from his gross back pay award.” Alternatively, the judge held that the sheriff had “failed to show at trial what [Upton] could have earned in a substantially similar full-time position elsewhere.”

3. Discussion. a. Mitigation of damages. Following a bench trial, we review a judge's findings of fact under the clearly erroneous standard and his conclusions of law de novo. Casavant v. Norwegian Cruise Line Ltd., 460 Mass. 500, 503, 952 N.E.2d 908 (2011). City Rentals, LLC v. BBC Co., 79 Mass.App.Ct. 559, 560, 947 N.E.2d 1103 (2011). On appeal, the sheriff challenges the judge's ruling that Upton had no duty to mitigate his damages or, in the alternative, that the sheriff failed to meet her burden of proof on this issue.

As an initial matter, it is not entirely clear on what basis the judge concluded that Upton “[had] no duty to mitigate his damages,” or what exactly the judge intended that statement to mean. In their briefs before this court, the parties have focused a great deal on the significance of the arbitral award's silence on the mitigation of damages issue, but it does not appear that the judge considered this fact in reaching his conclusion that no duty existed. While we ultimately agree with the judge's conclusion that the sheriff failed to meet her burden of proof on the mitigation of damages issue, and also conclude that the sheriff waived the issue, we disagree that Upton had no duty to mitigate.

It is a well-established rule that “[w]here one is under contract for personal service, and is discharged, it becomes his duty to dispose of his time in a reasonable way, so as to obtain as large compensation as possible, and to use honest,...