Fernandes v. Attleboro Housing Authority

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SJC-11580

DAVID FERNANDES vs. ATTLEBORO HOUSING AUTHORITY.

Bristol. September 4, 2014. - November 19, 2014.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.

Labor, Wages. Superior Court, Jurisdiction. Jurisdiction,
Primary jurisdiction, Superior Court, Civil Service
Commission. Public Employment, Termination, Reinstatement
of personnel. Civil Service, Applicability of provisions,
Termination of employment, Reinstatement of personnel.
Employment, Termination, Retaliation. Damages, Additur.
Practice, Civil, Additur, Attorney's fees. Housing
Authority. Municipal Corporations, Housing authority.

Civil action commenced in the Superior Court Department on
November 13, 2009.

The case was heard by Robert J. Kane, J., and motions for
judgment notwithstanding the verdict, for reinstatement, and for
a new trial or for additur were heard by him.

The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.

Maria M. Scott for the plaintiff.
David D. Dowd for the defendant.

SPINA, J. David Fernandes was employed by the Attleboro

Housing Authority (AHA) as a maintenance mechanic II from
 2

January 16, 2001, until his termination on May 29, 2009.

Approximately six months later, he commenced an action in the

Superior Court against the AHA for alleged violations of the

Wage Act, G. L. c. 149, §§ 148 and 148A. Fernandes claimed that

the AHA violated § 148 by intentionally misclassifying his

position as maintenance mechanic II, instead of maintenance

mechanic I, and thereby failing to pay him the wages to which he

was entitled. Fernandes also alleged that the AHA violated

§ 148A by terminating him in retaliation for complaining about

nonpayment of earned wages and filing a complaint with the

Attorney General's office.1 Following a trial in January, 2012,

a jury, in response to special questions, found in favor of

Fernandes on both claims. The jury awarded damages against the

AHA in the amount of $2,300 for unpaid wages due to

misclassification, and $130,000 for lost wages due to

retaliation.

The parties then filed numerous posttrial motions. Of

relevance to the present appeal, the AHA filed a motion for

judgment notwithstanding the verdict, contending that the

Superior Court lacked subject matter jurisdiction over

1
The remaining count of David Fernandes's complaint (count
two) alleged that his termination violated his procedural rights
under G. L. c. 121B, § 29, and G. L. c. 31, §§ 39-45. Fernandes
agreed to defer consideration of this claim until the jury
decided the matters of unpaid wages and retaliation. Following
the jury's verdict, Fernandes voluntarily withdrew count two of
his complaint.
 3

Fernandes's wage and retaliation claims because, as a housing

authority employee, Fernandes was required to bring such claims

before the Civil Service Commission (commission) for resolution.

Fernandes filed a motion for reinstatement to the position of

maintenance mechanic I with full seniority as if he had not been

terminated from employment on May 29, 2009, and a motion for a

new trial on damages or, in the alternative, for additur.

Following hearings, the trial judge denied all three motions in

a thorough and well-reasoned decision.

First, after considering the purposes of and remedies

afforded by the Massachusetts civil service law, G. L. c. 31,

§§ 41-45, and the Wage Act, G. L. c. 149, §§ 148, 148A, 150, the

judge discerned no legislative intent to confine a housing

authority employee to the procedures set forth in the civil

service law where his termination implicated violations of his

rights under the Wage Act. Accordingly, the judge concluded

that the AHA was not entitled to judgment notwithstanding the

verdict. Next, with respect to Fernandes's motion for

reinstatement, the judge was unpersuaded that G. L. c. 149,

§ 150, authorized such a remedy for retaliatory conduct in the

absence of clear statutory language to that effect. Finally,

the judge concluded that although the jury's calculation of

$130,000 in damages for lost wages due to retaliation was less

than the amount to which Fernandes thought he was entitled, the
 4

award was neither unreasonable nor so unduly small as to suggest

the need for additional relief. In accordance with G. L.

c. 149, § 150, the judge proceeded to award Fernandes treble

damages in the amount of $6,900 for unpaid wages and $390,000

for retaliatory termination, plus reasonable attorney's fees in

the amount of $36,667.50 and costs of $1,087.36.

The parties' cross appeals were entered in the Appeals

Court, and we transferred the case to this court on our own

motion. For the reasons that follow, we conclude that the

Superior Court had subject matter jurisdiction over Fernandes's

claims under the Wage Act, that reinstatement to employment is

not an available remedy for violations of such statutory scheme,

and that the judge did not abuse his discretion in denying

Fernandes's motion for additur. Accordingly, the judgment of

the Superior Court is affirmed.

1. Background. We briefly recite the facts the jury could

have found from the evidence at trial, reserving some details

for later discussion. When Fernandes was hired by the AHA in

2001, he was classified as a maintenance mechanic II. It was an

entry-level position, considered to be in the nature of an

apprenticeship to a higher job classification.

In 2003, the executive director of the AHA, John Zambarano,

implemented changes to the duties of its maintenance department

workers. Pursuant to these changes, Fernandes was required to
 5

perform more diversified work that he believed was consistent

with the position of maintenance mechanic I, which required a

greater skill level and paid a higher salary than he was

receiving.2 Notwithstanding Fernandes's enhanced job

responsibilities, the AHA continued to pay him the salary of a

maintenance mechanic II. On various occasions over the years of

his tenure, Fernandes complained to his supervisor, Mark

Johnson, and to Zambarano that he was misclassified and that,

based on his duties, he properly should be classified as a

maintenance mechanic I with the commensurate wage rate. His

complaints were unsuccessful.

Finally, on April 28, 2009, Fernandes filed a "Non-Payment

of Wage and Workplace Complaint Form" with the Attorney

General's office. He alleged that, based on his job

responsibilities, he had been misclassified as a maintenance

mechanic II and was owed wages commensurate with the position of

maintenance mechanic I. Fernandes informed Johnson that he had

filed this complaint, and he subsequently requested and received

from Dianne Precourt, AHA's financial coordinator, copies of his

job description and the prevailing wage rates. One month later,

2
In accordance with the provisions of G. L. c. 121B, § 29,
the Commissioner of Labor and Industries establishes minimum
wage rates for specified housing authority employees that are
based on their job classifications. For example, on April 1,
2009, the minimum hourly base rate for a maintenance mechanic II
increased from $20.51 to $21.32. The minimum hourly base rate
for a maintenance mechanic I increased from $20.76 to $21.83.
 6

on May 29, 2009, Zambarano called Fernandes into a meeting and

informed him that, based on the seniority of the personnel on

the maintenance staff, Fernandes was being laid off due to

budgetary constraints. He was given two weeks of severance pay.

The present action ensued.

2. Jurisdiction over Fernandes's claims. The AHA contends

in this appeal that a housing authority employee can seek

redress for an adverse employment action only through

administrative proceedings under the civil service law, G. L.

c. 31, §§ 41-45, and not through judicial proceedings in the

Superior Court. In the AHA's view, Fernandes's complaint

essentially alleged that he had been subjected to a decrease in

compensation and then terminated without "just cause," G. L.

c. 31, § 41, which are matters within the exclusive purview of

the commission. Consequently, the AHA continues, the Superior

Court lacked subject matter jurisdiction over Fernandes's

original action and, therefore, the judge should have granted

AHA's motion for judgment notwithstanding the verdict under the

doctrine of primary jurisdiction. We disagree.3

3
"[T]he question of subject matter jurisdiction may be
raised by the parties at any time or by the court on its own
motion." Maxwell v. AIG Domestic Claims, Inc., 460 Mass. 91, 99
(2011). Here, the Attleboro Housing Authority (AHA) raised the
issue of jurisdiction in a memorandum of law filed in connection
with its motion for judgment notwithstanding the verdict. Where
a determination is made that a court lacked subject matter
jurisdiction over asserted claims, its judgment is void. See
ROPT Ltd. Partnership v. Katin, 431 Mass. 601, 605 (2000).
 7

The doctrine of primary jurisdiction arises in cases where

a plaintiff, "in the absence of pending administrative

proceedings, invokes the original jurisdiction of a court to

decide the merits of a controversy" that includes an issue

within the special competence of an agency. Murphy v.

Administrator of the Div. of Personnel Admin., 377 Mass. 217,

220 (1979). See Everett v. 357 Corp., 453 Mass. 585, 609

(2009); Leahy v. Local 1526, Am. Fed'n of State, County & Mun.

Employees, 399 Mass. 341, 345-346 & n.3 (1987). See generally

A.J. Cella, Administrative Law and Practice § 1725 (1986 & Supp.

2014). "Where an agency has statutorily been granted exclusive

authority over a particular issue, the doctrine of primary

jurisdiction requires that a court refer the issue to the agency

for adjudication in the first instance" (emphasis in original).

Blauvelt v. AFSCME Council 93, Local 1703, 74 Mass. App. Ct.

794, 801 (2009), citing Everett v. 357 Corp., supra at 609-610.

See Puorro v. Commonwealth, 59 Mass. App. Ct. 61, 64 (2003).

The underlying rationale is that a court must be careful not to

invade the province of an administrative agency before it has

begun to exercise its authority in a particular case because

judicial interference effectively would transfer to the courts a

matter entrusted to the agency by the Legislature and would

result in a substitution of the court's judgment for that of the

agency. See Wilczewski v. Commissioner of the Dep't of Envtl.
 8

Quality Eng'g, 404 Mass. 787, 792 (1989). The doctrine of

primary jurisdiction has particular applicability when "an

action raises a question of the validity of an agency practice

. . . or when the issue in litigation involves 'technical

questions of fact uniquely within the expertise and experience

of an agency'" (citations omitted). Murphy v. Administrator of

the Div. of Personnel Admin., supra at 221, quoting Nader v.

Allegheny Airlines, Inc., 426 U.S. 290, 304 (1976). See

Columbia Chiropractic Group, Inc. v. Trust Ins. Co., 430 Mass.

60, 62 (1999).

This court has noted that "[a] determination that primary

jurisdiction over an issue in a civil case resides with an

administrative agency requires that the case be stayed or

dismissed to permit the administrative agency the opportunity to

issue its determination." Everett v. 357 Corp., 453 Mass. at

610 n.32. When an entire controversy is within the exclusive

jurisdiction of an administrative agency, the doctrine of

primary jurisdiction "ordinarily results in dismissal of

judicial proceedings begun without prior resort to the agency."

J. & J. Enters., Inc. v. Martignetti, 369 Mass. 535, 540 (1976).

However, "[w]here at least one of the issues or claims is a

matter for judicial determination or resolution, the court is

not ousted of subject matter jurisdiction by the presence in the

case of one or more issues which arguably are within the
 9

jurisdiction of an administrative or regulatory agency." Austin

Lakes Joint Venture v. Avon Utils., Inc., 648 N.E.2d 641, 646 &

n.5 (Ind. 1995). See Everett v. 357 Corp., supra at 611 n.34.

We proceed to consider the exclusivity of the commission's

jurisdiction with respect to Fernandes's claims. The AHA argues

that because G. L. c. 121B, § 29, explicitly provides civil

service protections to tenured housing authority employees, the

Legislature intended to confer jurisdiction solely on the

commission to resolve complaints about purported adverse

employment actions. We conclude that nothing in the civil

service law suggests that Fernandes was required to bring his

action before the commission where his claims alleged violations

of the Wage Act, G. L. c. 149, §§ 148 and 148A.4

General Laws c. 121B, § 29, provides that "[n]o employee of

any housing authority, except an employee occupying the position

of executive director, who has held his office or position . . .

within the authority for a total period of five years of

uninterrupted service, shall be involuntarily separated

therefrom except subject to and in accordance with the

provisions of [G. L. c. 31, §§ 41-45,] to the same extent as if

4
Even if Fernandes had not voluntarily withdrawn count two
of his complaint, see note 1, supra, the Superior Court would
not have been divested of subject matter jurisdiction. The
matter simply could have been stayed while the Civil Service
Commission (commission) issued a decision on the issues raised
in count two. See Everett v. 357 Corp., 453 Mass. 585, 609-610
& n.32 (2009).
 10

said office or position were classified under said chapter." In

turn, G. L. c. 31, § 41, states that a tenured employee shall

not be discharged or laid off except for "just cause" and except

in accordance with specific procedural requirements set forth in

the first paragraph of § 41. Pursuant to G. L. c. 31, § 42,

"[a]ny person who alleges that an appointing authority has

failed to follow the requirements of [§ 41] in taking action

which has affected his employment or compensation may file a

complaint with the commission" (emphasis added).5 In accordance

with G. L. c. 31, § 43, "[i]f a person aggrieved by a decision

of an appointing authority made pursuant to [§ 41] shall . . .

appeal in writing to the commission, he shall be given a

hearing." Thereafter, "[a]ny party aggrieved by a final order

or decision of the commission . . . may institute proceedings

for judicial review in the superior court." G. L. c. 31, § 44.

Finally, a tenured employee who has incurred attorney's fees in

the defense of an unwarranted adverse employment action "shall

be reimbursed for such expense," subject to specified

limitations. G. L. c. 31, § 45. In essence, G. L. c. 121B,

§ 29, affords housing authority employees, like Fernandes, the

protections of the civil service system.

5
The term "[a]ppointing authority" is defined as "any
person, board or commission with power to appoint or employ
personnel in civil service positions." G. L. c. 31, § 1.
 11

"The fundamental purpose of the civil service system is to

guard against political considerations, favoritism, and bias in

governmental hiring and promotion." Massachusetts Ass'n of

Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 259

(2001). It also is designed to "protect efficient public

employees" from partisanship and arbitrary punishment. Murray

v. Second Dist. Court of E. Middlesex, 389 Mass. 508, 514

(1983), quoting Debnam v. Belmont, 388 Mass. 632, 635 (1983).

See Dedham v. Labor Relations Comm'n, 365 Mass. 392, 396-397

(1974). The civil service system accomplishes its purpose by

mandating that an adverse employment action be taken only for

"just cause," and by imposing on an appointing authority the

obligation to comply with procedural requirements that are

intended to protect the rights of a tenured employee. "If the

commission finds that the appointing authority has failed to

follow [the] requirements [of G. L. c. 31, § 41,] and that the

rights of [any] person [filing a complaint] have been prejudiced

thereby, the commission shall order the appointing authority to

restore said person to his employment immediately without loss

of compensation or other rights." G. L. c. 31, § 42.

The aforementioned language of G. L. c. 121B, § 29, and the

provisions of G. L. c. 31, §§ 41-45, clearly are meant to

protect tenured employees' rights, but nothing therein dictates

that the only avenue by which a housing authority employee who
 12

claims that he has been paid inadequate wages and involuntarily

separated from his employment can seek redress is through

administrative proceedings before the commission. To the

contrary, the language in G. L. c. 31, § 42, stating that an

aggrieved employee "may" file a complaint with the commission

strongly suggests that the Legislature has not granted exclusive

authority over all challenged employment actions to the

commission. See Salem v. Massachusetts Comm'n Against

Discrimination, 404 Mass. 170, 172-174 (1989) (Massachusetts

Commission Against Discrimination and Civil Service Commission

simultaneously resolved separate complaints filed by individual

alleging failure to hire based on race); Dedham v. Labor

Relations Comm'n, 365 Mass. at 400-404 (Civil Service Commission

did not have exclusive jurisdiction over suspension of employee

where claim of prohibited labor practice also could be brought

before Labor Relations Commission). In circumstances where, as

here, an employee's claims focus not on an employer's failure to

satisfy the requirements of G. L. c. 31, § 41, but, rather, on

the employer's violation of an entirely different and separate

statutory mandate, the employee is not required to proceed

before the commission, but may commence a civil action.

Of critical significance in this case is the nature of

Fernandes's claims. The AHA characterizes those claims within

the framework of the civil service law, contending that
 13

determinations whether Fernandes was subjected to a retaliatory

layoff or a "lower[ing] in rank or compensation," G. L. c. 31,

§ 41, involve a "just cause" analysis. However, contrary to the

AHA's view of Fernandes's complaint, the substance of his

interrelated claims pertained to alleged violations of the Wage

Act. More specifically, Fernandes asserted that the AHA

intentionally misclassified his position and thereby failed to

pay him the wages to which he was entitled, see G. L. c. 149,

§ 148,6 and that the AHA then terminated his employment in

retaliation for his filing of a nonpayment of wage complaint

with the Attorney General's office, see G. L. c. 149, § 148A.7

Because the central thrust of Fernandes's action was the AHA's

purported violations of the Wage Act, and not its alleged

failure to act with "just cause," Fernandes elected to seek

redress for the harm he sustained by filing an action in the

Superior Court, rather than by commencing administrative

6
General Laws c. 149, § 148, directs "[e]very" employer to
pay an employee "the wages earned" by that employee at regular
intervals and within a fixed number of days after "the
termination of the pay period during which the wages were
earned." When an employee "has completed the labor, service, or
performance required of him . . . he has 'earned' his wage."
Awuah v. Coverall N. Am., Inc., 460 Mass. 484, 492 (2011).
7
General Laws c. 149, § 148A, states that "[n]o employee
shall be penalized by an employer in any way as a result of any
action on the part of an employee to seek his or her rights
under the wages and hours provisions of [G. L. c. 149]."
Further, "[a]ny employer who discharges . . . any employee
because such employee has made a complaint to the attorney
general or any other person . . . shall have violated this
section and shall be punished." G. L. c. 149, § 148A.
 14

proceedings before the commission. Nothing in the civil service

law precluded him from doing so.8 See generally Boston Police

Patrolmen's Ass'n v. Boston, 435 Mass. 718, 719-720 (2002) (we

interpret statutory language according to intent of Legislature

ascertained from its words considered in context of statute's

purpose).

Similarly, nothing in the Wage Act excludes a housing

authority employee from its protections or requires that such

employee pursue relief from alleged wrongful conduct under the

civil service system. "The purpose of the Wage Act is 'to

prevent the unreasonable detention of wages.'" Melia v.

Zenhire, Inc., 462 Mass. 164, 170 (2012), quoting Boston Police

Patrolmen's Ass'n v. Boston, 435 Mass. at 720. See Lipsitt v.

Plaud, 466 Mass. 240, 245 (2013). It was designed, among other

purposes, "to protect wage earners from the long-term detention

of wages by unscrupulous employers." Melia v. Zenhire, Inc.,

supra, quoting Cumpata v. Blue Cross Blue Shield of Mass., Inc.,

113 F. Supp. 2d 164, 167 (D. Mass. 2000). To ensure that

employees are not penalized for asserting their rights to earned

8
The AHA's reliance on Camerlengo v. Civil Serv. Comm'n,
382 Mass. 689 (1981), and Cambridge Hous. Auth. v. Civil Serv.
Comm'n, 7 Mass. App. Ct. 586 (1979), to support its contention
that the commission has exclusive jurisdiction over an
employee's claims of unlawful termination is unavailing. As
correctly pointed out by the judge below, those cases did not
involve an adverse employment action that allegedly violated an
employee's independent statutory rights, such as those under the
Wage Act. See Camerlengo v. Civil Serv. Comm'n, supra at 689-
690; Cambridge Hous. Auth. v. Civil Serv. Comm'n, supra at 587.
 15

wages, the Legislature included an antiretaliation clause in the

Wage Act, G. L. c. 149, § 148A, to protect employees, like

Fernandes, who complain about violations of the statute. See

Smith v. Winter Place LLC, 447 Mass. 363, 367-368 (2006);

Fraelick v. PerkettPR, Inc., 83 Mass. App. Ct. 698, 704 (2013).

When the Wage Act was first enacted in 1886, it "was

initially limited to employees of a 'manufacturing, mining or

quarrying, mercantile, railroad, street railway, telegraph,

telephone and municipal corporation and every incorporated

express company and water company.'" Melia v. Zenhire, Inc.,

462 Mass. at 171 n.6, quoting St. 1886, c. 87, § 1. Since that

time, however, the Legislature has broadened the scope of the

Wage Act by imposing its provisions on "[e]very person having

employees in his service." G. L. c. 149, § 148. See Lipsitt v.

Plaud, 466 Mass. at 245 & n.8; Melia v. Zenhire, Inc., supra.

An employee claiming to be aggrieved by a violation of G. L.

c. 149, § 148 or 148A, may bring a private civil action ninety

days after filing a complaint with the Attorney General, or

sooner if the Attorney General assents to such suit, for

injunctive relief, damages, and any lost wages and other

benefits.9 G. L. c. 149, § 150. See Depianti v. Jan-Pro

9
The AHA attaches significance to the fact that an
investigator with the Attorney General's fair labor and business
practices division told Fernandes that the Attorney General
lacked statutory authority over complaints from housing
authority employees alleging underpayment or nonpayment of
 16

Franchising Int'l, Inc., 465 Mass. 607, 611-612 (2013). "An

employee so aggrieved who prevails in such an action shall be

awarded treble damages, as liquidated damages, for any lost

wages and other benefits and shall also be awarded the costs of

the litigation and reasonable attorneys' fees." G. L. c. 149,

§ 150. See Melia v. Zenhire, Inc., supra at 171 n.8. See also

Goodrow v. Lane Bryant, Inc., 432 Mass. 165, 178 (2000) (treble

damages are punitive in nature, authorized only where allowed by

statute, and appropriate where defendant's conduct is outrageous

or indifferent to rights of others). There is no provision in

the Wage Act stating that if an aggrieved employee has been

afforded civil service protections, that employee must proceed

before the commission, rather than commencing a civil action.

See Depianti v. Jan-Pro Franchising Int'l, Inc., supra at 613-

614 (filing requirement of G. L. c. 148, § 150, "triggers no

mandatory agency investigation or administrative adjudicatory

action").

Although both the civil service law and the Wage Act

address wrongful conduct arising in the employment context, they

wages. As the judge below correctly pointed out, the
investigator's understanding of the Attorney General's
interpretation of the Wage Act, which was not equivalent to a
formal agency interpretation, was not entitled to deference.
Contrast Smith v. Winter Place LLC, 447 Mass. 363, 367-368
(2006) (deference given to formal advisory opinion of Attorney
General's office). Further, "the duty of statutory
interpretation ultimately is for the courts." Spaniol's Case,
466 Mass. 102, 106 (2013). See Electronic Data Sys. Corp. v.
Attorney Gen., 454 Mass. 63, 69 (2009).
 17

have distinct purposes and, as a consequence, provide different

remedies for the violation of their statutory mandates.

Notwithstanding the fact that Fernandes was a housing authority

employee, we discern no intent on the part of the Legislature to

preclude him from bringing an action in the Superior Court

specifically to vindicate his rights under the Wage Act.

Although the Commissioner of Labor and Industries is authorized

under G. L. c. 121B, § 29, to "determine rates of wages" for

each classification of work performed by laborers for a housing

authority, neither that statutory provision nor G. L. c. 31,

§§ 41-45, address the unlawful withholding of earned wages by an

employer. It is the Wage Act that speaks to and provides

remedies for such prohibited employer conduct. G. L. c. 149,

§§ 148, 150. In a similar vein, the Legislature clearly

intended to sanction severely those employers who retaliate

against employees who complain about purported wage violations.

See G. L. c. 149, §§ 148A, 150. That occurs under the Wage Act.

See id. Fernandes's claims are not ones that require the

special expertise of the commission to resolve. See Columbia

Chiropractic Group, Inc. v. Trust Ins. Co., 430 Mass. at 62.

See also Murphy v. Administrator of the Div. of Personnel

Admin., 377 Mass. at 221. Moreover, their resolution by the

Superior Court does not interfere with the development and

administration of policies under the civil service law. See id.
 18

at 222. For all of the foregoing reasons, we conclude that the

Superior Court had subject matter jurisdiction over Fernandes's

claims. The judge did not err in denying the AHA's motion for

judgment notwithstanding the verdict.

3. Reinstatement to employment. As we have discussed,

G. L. c. 149, § 150, provides that an employee claiming to be

aggrieved by a violation of G. L. c. 149, §§ 148 or 148A, may

bring a civil action "for injunctive relief, for any damages

incurred, and for any lost wages and other benefits." Fernandes

contends that, given the jury's verdicts, the judge erred in

denying his motion for reinstatement to the position of

maintenance mechanic I with full seniority as if he had not been

terminated from employment on May 29, 2009. He argues that the

"injunctive relief" language in G. L. c. 149, § 150, permits the

equitable remedy of reinstatement. We disagree, and conclude

that reinstatement to employment is not an available remedy for

violations of the Wage Act.

Fernandes analogizes the "injunctive relief" language in

the Wage Act, G. L. c. 149, § 150, to language in the

Massachusetts antidiscrimination statute, G. L. c. 151B, which

provides that "[a]ny person claiming to be aggrieved by a

practice made unlawful under this chapter" may bring "a civil

action for damages or injunctive relief or both in the superior

or probate court." G. L. c. 151B, § 9. Relying on Stonehill
 19

College v. Massachusetts Comm'n Against Discrimination, 441

Mass. 549, 585 (Sosman, J., concurring), cert. denied sub nom.

Wilfert Bros. Realty Co. v. Massachusetts Comm'n Against

Discrimination, 543 U.S. 979 (2004), Fernandes asserts that

while the language of G. L. c. 151B, § 9, like the Wage Act,

does not specifically identify reinstatement as a form of

injunctive relief, courts have recognized that reinstatement is

a proper remedy under G. L. c. 151B.

We acknowledge that reinstatement is an available remedy

under G. L. c. 151B, but it is one that is expressly permitted

by the Massachusetts Commission Against Discrimination (MCAD) in

the context of an administrative proceeding under § 5. General

Laws c. 151B, § 5, states that when the MCAD finds that a

respondent has engaged in any unlawful practice as defined in

G. L. c. 151B, § 4, the MCAD has broad authority to take

affirmative action to remedy such unlawful practice, "including

but not limited to, hiring, reinstatement or upgrading of

employees, with or without back pay, . . . as, in the judgment

of the [MCAD], will effectuate the purposes of this chapter"

(emphasis added). See Stonehill College v. Massachusetts Comm'n

Against Discrimination, 441 Mass. at 563 (primary purpose of

administrative proceeding before MCAD is to vindicate public's

interest in reducing workplace discrimination by deterring and

punishing unlawful conduct by employers). We have said that
 20

G. L. c. 151B "provides an aggrieved party with 'two largely

independent avenues for redress of violations of [G. L.

c. 151B], one through the MCAD (G. L. c. 151B, §§ 5-6), and the

other in the courts (G. L. c. 151B, § 9).'" Thurdin v. SEI

Boston, LLC, 452 Mass. 436, 441-442 (2008), quoting Stonehill

College, supra at 565. See Brunson v. Wall, 405 Mass. 446, 452

(1989). As such, "[t]he remedies available under G. L. c. 151B,

§§ 5 and 9, differ." Thurdin v. SEI Boston, LLC, supra at 442

n.9. The Legislature plainly has articulated the availability

of reinstatement as a remedy for employment discrimination in

G. L. c. 151B, § 5.

Similarly, in other circumstances where the Legislature has

authorized reinstatement as a remedy for unlawful discharge, it

has done so expressly. See, e.g., G. L. c. 12, § 5J (3) (where

employee discharged for disclosing information to government or

law enforcement agency under Massachusetts False Claims Act,

court may order "reinstatement with the same seniority status

[such] employee . . . would have had but for the

discrimination"); G. L. c. 149, § 185 (d) (where employee

discharged in retaliation for disclosing information pursuant to

Massachusetts whistleblower statute, court may "reinstate the

employee to the same position held before the retaliatory

action, or to an equivalent position"); G. L. c. 150E, § 11 (d)

(where employer commits prohibited practice under public
 21

employees collective bargaining statute, "hearing officer shall

order the reinstatement with or without back pay of an employee

discharged or discriminated against in violation of the

[statute]"). It is well established that "we do not 'read into

[a] statute a provision which the Legislature did not see fit to

put there, whether the omission came from inadvertence or of set

purpose.'" General Elec. Co. v. Department of Envtl.

Protection, 429 Mass. 798, 803 (1999), quoting King v. Viscoloid

Co., 219 Mass. 420, 425 (1914). See Dartt v. Browning-Ferris

Indus., Inc. (Mass.), 427 Mass. 1, 9 (1998) (court will not add

language to statute that Legislature could have, but did not,

include). The omission of particular language from a statute is

deemed deliberate where the Legislature included such omitted

language in related or similar statutes. See Thomas v.

Department of State Police, 61 Mass. App. Ct. 747, 754 (2004).

See also Commonwealth v. Gagnon, 439 Mass. 826, 833 (2003),

quoting 2A N.J. Singer, Sutherland Statutory Construction

§ 46.06, at 194 (6th ed. rev. 2000) ("[W]here the legislature

has carefully employed a term in one place and excluded it in

another, it should not be implied where excluded").

Here, nothing in the Wage Act, G. L. c. 149, § 150, permits

a court to order the reinstatement of an employee who has been

aggrieved by an employer's unlawful conduct in violation of

G. L. c. 149, §§ 148 or 148A. We are not persuaded that the
 22

Legislature's use of the phrase "injunctive relief" in § 150

encompasses the remedy of reinstatement, particularly where the

availability of such a remedy under other statutory provisions

has been expressly articulated by the Legislature.10 Moreover,

we decline to engraft onto the Wage Act remedies that are

available to an aggrieved employee under the antidiscrimination

statute, G. L. c. 151B. When Fernandes elected to commence an

10
Fernandes's reliance on Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e et seq. (2012) (Title VII), and on
the Americans with Disabilities Act, 42 U.S.C. § 12112 (2012)
(ADA), to support his claim for reinstatement is similarly
unavailing. Unlike the Wage Act, Title VII explicitly
authorizes reinstatement as a remedy for unlawful employment
practices, and the ADA expressly permits reinstatement as a
remedy for discrimination. Title VII states, in relevant part,
that "[i]f the court finds that the respondent has intentionally
engaged in . . . an unlawful employment practice . . . , the
court may . . . order such affirmative action as may be
appropriate, which may include, but is not limited to,
reinstatement or hiring of employees, with or without back pay
. . . , or any other equitable relief as the court deems
appropriate" (emphasis added). 42 U.S.C. § 2000e-5(g)(1). See
Che v. Massachusetts Bay Transp. Auth., 342 F.3d 31, 43 (1st
Cir. 2003) (reinstatement "most efficiently" advances goals of
Title VII by making employees whole and by deterring future
discriminatory conduct by employers); Selgas v. American
Airlines, Inc., 104 F.3d 9, 12 (1st Cir. 1997) (remedial scheme
in Title VII designed to make victims of discrimination whole
through use of equitable remedies, including reinstatement). In
like manner, the ADA provides that the remedies set forth in,
among other sections, 42 U.S.C. § 2000e-5 shall be the remedies
available to "any person alleging discrimination on the basis of
disability in violation of any provision of [the ADA] . . .
concerning employment." 42 U.S.C. § 12117(a) (2012). See Quint
v. A.E. Staley Mfg. Co., 172 F.3d 1, 19 (1st Cir. 1999), quoting
Selgas v. American Airlines, Inc., supra at 13 (reinstatement is
"overarching preference" among all equitable remedies under
ADA). See also 42 U.S.C. § 12203(c) (2012) (remedies under 42
U.S.C. § 12117 available to aggrieved persons when employer
engages in retaliation or coercion).
 23

action in the Superior Court, rather than before the commission,

to seek redress for the harm he purportedly sustained as a

consequence of the AHA's violations of the Wage Act, he also

effectively elected the remedies that would be afforded under

that statutory scheme. Contrast G. L. c. 31, § 42

(reinstatement may be available for illegal discharge under

civil service law). We conclude that the judge properly denied

Fernandes's motion for reinstatement.

4. Additur. Fernandes contends that the judge abused his

discretion in denying Fernandes's motion for a new trial on

damages or, in the alternative, for additur. Mass. R. Civ. P.

59 (a), 365 Mass. 827 (1974). He asserts that, based on the

testimony of the AHA's financial coordinator, Dianne Precourt,

the proper amount of his lost wages and benefits was $193,750.11

However, the jury determined, after finding that the AHA had

retaliated against Fernandes, that his lost wages and benefits

amounted to $130,000. In Fernandes's view, because the evidence

presented at trial regarding his damages was uncontroverted, the

jury's award was unreasonable and inexplicable, and, therefore,

the judge should have granted an additur. We disagree.

11
According to Fernandes, Dianne Precourt testified that
Fernandes's wages and benefits equated to $75,000 per year.
This sum was the equivalent of $6,250 per month. At trial,
Fernandes testified that he did not earn any income from the
time his severance pay ended (June 15, 2009) until the jury
rendered its verdict (January 20, 2012). Therefore, when
Fernandes multiplied $6,250 per month by thirty-one months, the
result was $193,750.
 24

Additur serves the beneficial goal of "securing substantial

justice between the parties without the burdensome costs, delays

and harassments of new trials." Baudanza v. Comcast of Mass. I,

Inc., 454 Mass. 622, 626 (2009), quoting Freeman v. Wood, 379

Mass. 777, 782 (1980). "An additur is appropriate where the

judge concludes that the verdict is sound except for the amount

of damages and that the amount of damages is unreasonable." Id.

at 629-630, quoting Service Publs., Inc. v. Goverman, 396 Mass.

567, 580 (1986). See DiBiase v. Rowley, 33 Mass. App. Ct. 928,

930 (1992) (plaintiff entitled to additur where damages awarded

by jury greatly disproportionate to proven injury). "An unduly

slim verdict, however, may signal the existence of other defects

in the work of the jury, or mistakes by the judge. In such a

case additur would not be appropriate, and a simple new trial

would be called for." Freeman v. Wood, supra at 785-786. See

Proctor v. North Shore Community Arts Found., 47 Mass. App. Ct.

372, 376 (1999). "[T]he allowance of a motion for a new trial

based upon an inadequate . . . award of damages, and the

direction of an addition . . . , rests in the sound discretion

of the judge." Loschi v. Massachusetts Port Auth., 361 Mass.

714, 715 (1972). See Baudanza v. Comcast of Mass. I, Inc.,

supra at 630.

Here, the judge stated that although the $130,000 awarded

by the jury in lost wages was less than the amount calculated by
 25

Fernandes, it was not unreasonable. Further, he continued, the

award was not "unduly slim" so as to signal the existence of

other defects in the jury's work that would necessitate a new

trial on damages. Freeman v. Wood, 379 Mass. at 785.

Accordingly, based on a survey of the entire case, the judge

denied Fernandes's motion for a new trial on damages or,

alternatively, for an additur. We conclude that the judge did

not abuse his discretion.

Fernandes relies on the testimony of Precourt to support

his contention that the jury's award of damages was unreasonably

low. However, Fernandes's characterization of that testimony

does not match its substance. At trial, Precourt stated that,

in 2009, she put together information as to how much money the

AHA would save by laying off one worker. She determined that

the value or cost of the employee to the AHA each year "probably

would have totaled about $75,000." Contrary to Fernandes's

understanding, this testimony was not exactly the same as saying

that, as a consequence of being laid off, Fernandes lost wages

and benefits totaling $75,000 per year. Moreover, Precourt's

testimony was not the only evidence presented to the jury

pertaining to the issue of damages. Also admitted in evidence

were payroll documents setting forth Fernandes's wages over

several years. As reflected on the pay stub for the period

ending May 3, 2009, Fernandes's gross weekly pay was $966.76.
 26

The jury could have determined that this amount would equate to

approximately $50,271.52 per year, or $4,189.29 per month. If

the jury had multiplied that sum by thirty-one months, see note

11, supra, the total would have been $129,867.99 in lost wages

and benefits, which is very close to the $130,000 in damages

awarded by the jury for the AHA's retaliatory conduct. The

judge properly denied Fernandes's motion for a new trial on

damages or, in the alternative, for an additur.

5. Appellate attorney's fees. In his reply brief,

Fernandes has requested reasonable attorney's fees and costs.

General Laws c. 149, § 150, states that an aggrieved employee

who prevails in an action alleging violations of G. L. c. 149,

§§ 148 or 148A, "shall be awarded . . . the costs of the

litigation and reasonable attorneys' fees." The judge below

awarded Fernandes such fees and costs in connection with the

proceedings before the Superior Court. We now conclude that

Fernandes is statutorily entitled to recover reasonable

appellate attorney's fees and costs with respect to the claims

on which he prevailed. See Yorke Mgt. v. Castro, 406 Mass. 17,

19 (1989). He is directed to file with the clerk of this court

materials detailing and supporting his request for such fees and

costs within fourteen days of the issuance of the rescript in

this case. See Fabre v. Walton, 441 Mass. 9, 10 (2004). The
 27

AHA will be afforded fourteen days to respond, and the court

will then enter an appropriate order. See id. at 10-11.

6. Conclusion. For the foregoing reasons, the judgment of

the Superior Court is affirmed.

So ordered.