Dixon v. City of Malden

Dixon v. City of Malden

Opinion

 [**261]  [*446] IRELAND, C.J. We transferred this case from the Appeals Court on our own motion to consider whether undifferentiated [*447]  gratuitous weekly payments made by the city of Malden (city) to the plaintiff, Gary Dixon, after he was discharged covered his claim for unpaid vacation days under G. L. c. 149, §§ 148and 150 (Wage Act). The plaintiff appeals from a judgment of the Superior Court dismissing his claim against the city. He asserts that a Superior Court judge erred in dismissing his claim under the Wage Act for vacation pay, costs, attorney's fees, and treble damages on the ground that, although the manner of the [**262]  payments violated the express language of the Wage Act, the city nevertheless compensated the plaintiff. Because we conclude that the city could not cast  [***2] those payments as vacation pay after the fact and that the plaintiff is entitled to recover his vacation pay in addition to costs and attorney's fees, we remand the case to the Superior Court for entry of a judgment consistent with our opinion.

Facts and procedure. We present the essential facts found by the judge after a jury-waived trial.

In 1983, the city appointed the plaintiff as a director of a city-owned nursing home, where the plaintiff worked until March, 2007. Although a city ordinance provided for successive two-year terms of appointment, the city did not formally reappoint the plaintiff to his position after 1996. He continued working in a "holdover capacity," apparently under a provision in a city ordinance providing that appointed officials hold office "until a successor shall be chosen and qualified." As a city employee, the plaintiff was entitled to a certain number of vacation days each year, based on years of service.

In December, 2006, the plaintiff was notified that his position at the nursing home was going to be discussed at a meeting of the city's board of health, the appointing authority for the plaintiff's position. The plaintiff and his counsel attended. Although  [***3] the board unanimously approved a motion not to reappoint the plaintiff, at the request of his counsel, it agreed to negotiate with the plaintiff over retirement and severance issues. No settlement agreement was in place before the plaintiff was informed that a successor, who was to begin March 20, 2007, had been appointed. In a letter dated March 21, 2007, the plaintiff was instructed that he was relieved of all responsibilities and should turn in his keys, leave the facility immediately, and [*448]  contact the human resources department for an exit interview and details concerning benefits.

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