Boston Police Department v. Jones

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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.